THE COURT

(Sheriff MacLeod, Mr D J Houston)

THOMASON v BROWN and others

(Application RN SLC/59/11 – Order of 13 March 2013)

CROFTING – CROFT BOUNDARIES – DIVISION OF RUNRIG AND SCATTALDS IN SHETLAND – DISCUSSION OF MERKS AND MERK LANDS – INSUFFICIENT EVIDENCE TO ALLOW BOUNDARY TO BE CLEARLY DETERMINED – BOUNDARY DETERMINED IN ACCORDANCE WITH SEC 53A OF CROFTERS (SCOTLAND) ACT 1993

Croft boundary cases are normally only of interest to the parties involved. This is a case from Shetland which is reported because it involves unusual features such as division of runrig and scattald and discussion of “merks” and “merk lands” and also as an example of the Court having to resort to the provisions of sec 53A of the Crofters (Scotland) 1993 in the absence of sufficient evidence to determine a croft boundary.

The Note attached to the Court’s Order was as follows:

NOTE

[1] This is an application to fix the boundaries of a croft known as “Southouse” in Cunnister, North Yell, Shetland.

The parties

[2] The applicant is Mr Robert Marvin Thomason, the tenant of the croft. The first respondent is Mr Arnold Thomas James Brown, the tenant of another of the Cunnister crofts known as “The Haa”. The second respondent is Mr William Andrew Brown, Arnold Brown’s father, who is said to be the owner of The Haa. The third respondent is Mr John Henry Williamson. Mr Williamson appears in two capacities. He is the Clerk to the Grazings Committee of Sandwick, Sellafirth and Dalsetter Common Grazings (or, this being Shetland, “Scattald”) and in that capacity has an interest in the case in so far as the dispute might impinge upon the scattald. The second capacity in which he appeared at the hearing aftermentioned was as representative of his mother, Mrs Charlotte Williamson, who is the fourth respondent. Mrs Williamson is the owner-occupier of another Cunnister croft known as Park. The last recorded heritable proprietors of Southouse were Hilda Margerita Moar and Bella Florence Moar, daughters of Mrs Emilie Catherina Elizabeth Tredob or Moar. Mrs Moar and her daughters left Shetland for the United States sometime before 1921. The title in their favour appears to have been recorded around that time but nothing has been heard of them for many years and, as we understand it, it has not been thought worthwhile to attempt to trace their representatives for the purposes of this application. Accordingly the landlords of the croft, whomsoever they may now be, are not represented in this application.

[3] We heard the case at Lerwick on 13, 14 and 15 November 2012 and carried out an inspection on 16 November. At the hearing Mr William Brown and the Williamsons were not professionally represented and the case was largely litigated between Mr Thomason, who was represented by Mr Brian Inkster, solicitor, and Mr Arnold Brown, who was represented by Mr Stuart Kelly, solicitor. It was not possible to hear submissions in the time available to us in Lerwick and parties agreed that submissions should be made in writing within 21 days. We are grateful to parties for the submissions subsequently lodged.

The issues

[4] The parties are in dispute in relation to five pieces of land which we will identify by reference to production 9. Production 9 appears to be based on the 1971 Edition of the 1:2500 OS map. It has been lodged by the applicant. It shows, delineated by black dashes, what the applicant claimed at the outset of this application as Southouse croft. For the moment we refer to it only for the purposes of identifying which areas of that land are or are not in dispute. The position is as follows:-

(i) The fields numbered 7143 and 7360 are not in dispute. It is agreed that they form part of Southouse.

(ii) Field number 6744 is in dispute. The respondents say that, with the exception of a strip of land running for most of its length on the side adjacent to field 7143, it is part of a croft or holding called “Meegie’s”, owned by William Brown and worked by his sister, Miss Charlotte Brown. Said strip is referred to by the respondents as “The Minister’s Merk” and is said to belong to the Church of Scotland and to be tenanted by Charlotte Brown. The applicant says that the land tenanted by Miss Brown from the Church of Scotland is not this strip at all but a former Glebe situated to the northeast of the public road some distance north of the crofts, being the subjects shown on production 11.

(iii) Most of field 6965 to the south east of the track or “strodie” is in dispute. The respondents say that it is part of The Haa with the exception of the old Southouse dwelling house, now a ruin, a small area of garden ground pertaining to the house and the former Southouse byre, now used as a henhouse by the Thomasons.

(iv) Field 8161 is in dispute. In evidence and submissions this field was wrongly referred to as field 7663. Closer inspection of the map, however, reveals that the number 7663 refers to the road and a strip of land to the southwest of the road. The land in dispute on the northeast side of the road is part of the large field 8161. The area of that land initially claimed by the applicant is shown on production 9. The area which Arnold and William Brown accept as belonging to Southouse is shown on production 63.They say that the land to the northwest of that, up to the hill access track, belongs to the Haa.

(v) Field 6955 is in dispute. The applicant says all of it is part of Southouse. The Browns say that half of it is Southouse and half Meegie’s.

(vi) Field 7740 is in dispute. The applicant does not claim it as part of Southouse but says that it is the “common Cow park” referred to in the title document relating to Southouse (production 3) as adjoining the croft wherein the croft is said to have a pro indiviso share to the extent of a right to graze three cows. The respondents say that field 7740 is not common land of any sort but is all part of The Haa and known as “The Haa Rigs”.

The witnesses

[5] Evidence was given by Mrs Elaine Catherine Thomason, wife of the applicant, and by Mr Thomason himself, for the applicant; by Mr Arnold Brown, Mrs Margaret Doreen Bowler and Mr William Brown, on behalf of the first respondent (Mr William Brown’s evidence also being regarded as given on his own behalf); and by said Mr Williamson, on behalf of himself and his mother.

[6] We found the witnesses to be generally credible and, subject to a minor qualification in respect of one of them, reliable. To a large extent their evidence did not substantially conflict. That was because they were approaching the issues from different directions. Mr and Mrs Thomason, particularly Mrs Thomason, who had carried out or instructed the relevant research, concentrated on the historical position as revealed by documentation going back to the late eighteenth century whereas the other witnesses concentrated largely on possession of the relevant land during their lifetimes. Since they are relative newcomers to Cunnister, the applicant and his wife were less well placed to speak to occupancy in the last sixty years of the twentieth century than the respondents. Mrs Bowler was at a similar disadvantage. William Brown was the witness best placed to give evidence as to these matters simply because he had the longest association with Cunnister. He was supported by his son but, naturally, there was nothing really that Arnold Brown could add to his father’s evidence as to historical usage. John Williamson, on the other hand, had the merit of having a reasonably long association with Cunnister and, since he did not have a personal interest in the matters in dispute, could be regarded as an independent and objective witness. His evidence largely supported that of William Brown.

[7] Criticism was made in the applicant’s submissions as to Mrs Bowler’s credibility and reliability. The attack on her was on the basis of apparent contradictions in her evidence. Mrs Bowler had been the tenant of Southouse before Mr Thomason. She gave clear evidence that she had never contemplated giving Mr Severn the tenancy of Southouse, whereas production 79 demonstrated that she had made offers over a period of time to sub-let the croft to him. Similarly she gave evidence that the tin shed (see below) was to belong to William Brown when she and her husband had no further need for it but production 45 suggested she had sold this shed to Mr Severn.

[8] As to the first of these apparent contradictions, it does serve as a warning as to Mrs Bowler’s reliability. We do not think her credibility is in doubt. She explained that she was having many problems at the material time. It is therefore understandable that she may simply be misremembering. So far as the second is concerned, it does not seem to have been put to Mrs Bowler in evidence and we cannot therefore take account of it. On the other hand her evidence as to the land on which the tin shed stands and how she and her husband came to realise that it was William Brown’s land and as to their subsequent agreement with him is all supported by the evidence of Mr Brown. It is not suggested by the applicant that he is lying; only that he is mistaken as to his rights in that land. Nor was it put to these witnesses that they were in collusion. Accordingly we accept the evidence of Mrs Bowler at least in so far as it is supported by that of other witnesses in the case whose evidence we are inclined to accept.

[9] There was a conflict between Mrs Bowler and Mr and Mrs Thomason as to the extent to which the boundaries of Southouse had been explained and pointed out by Mrs Bowler when the tenancy was assigned to Mr Thomason. It is not necessary to resolve this conflict, however, since disposal of the case does not depend on Mr and Mrs Thomason’s understanding of the boundaries of the croft they were acquiring.

[10] Mr and Mrs Thomason also submitted that Arnold and William Brown were mistaken in their understanding of the legal position, particularly as to the meaning of the title deeds on which they relied, and that their evidence was unreliable in that respect. But that is different from being unreliable as to matters of fact. It was not suggested that they were wrong on factual matters such as the occupation and use made of the different areas of land by members of the Brown family over the years. Accordingly we accept their evidence on these matters as credible and reliable. The legal import of deeds referred to in evidence is for us to decide.

[11] Because there was little in the way of factual dispute between the parties we need not set out the evidence given by the witnesses. Instead we will proceed directly to the making of findings in fact which are, given the absence of factual conflict, largely uncontroversial.

Findings in fact

[12] We found the following matters admitted or proved:-

[13] The village of Cunnister, North Yell, Shetland, was a crofting township before the passing of the Crofters Holdings (Scotland) Act 1886 (“the 1886 Act”).

[14] The township is nucleate in pattern, comprising a nucleus of crofthouses, outbuildings, yards and arable fields surrounded by outrun land. To the north and east of the township is the Sandwick, Sellafirth and Dalsetter scattald, in which the crofters of Cunnister have shares. The general lay-out is seen in the clean copy of part of the 1971 OS map which is part of production 63. The division between the in-bye land (including township outrun - see below) and the scattald takes the form of a now largely derelict dyke, shown delineated in green and yellow on productions 28 and 29 respectively. The public road from Sellafirth to Kirkabister formerly ran close to the side of that dyke at the northeast of the township but the modern road runs a little distance further to the southwest of the dyke and runs through the inbye croft land rather than generally across the top of it as the old road did.

[15] Until 1817 the land in Cunnister was held runrig. In 1817 a formal division of the land within the township was carried out by Mr Magnus Winwick, Schoolmaster in Unst. Production 71 is a copy of the plan which accompanied the report of that division. The report itself was not produced. The plan is dated 27 March 1817.

[16] At that time ownership of the land in Cunnister was divided according to “merks”. A merk (or “mark”) was a measure known in Udal law but was not a measure of the extent of land but a unit of valuation; The Laws of Scotland Stair Memorial Encyclopaedia, Vol 24, para 311. There were 32 merks in Cunnister held by six merk-holders, viz, Hosea Hoseason (14 merks), John Hoseason (6.5), Hosea Brown (4.5), Gilbert Spence (1), Gilbert Scollay (5) and the Rev James Ingram (1). The areas which appear to have come to be owned by Hosea Hoseason, John Hoseason, Hosea Brown and Gilbert Scollay by virtue of said division are shown on production 71 by their initials and there is a note that the single merks held by Gilbert Spence and the Rev James Ingram are in “Mr Hosea Hoseason’s Fields, yet undivided from his Land by Grass and Meadow”. The areas described as “Land” on said production were areas of arable land, the areas shown as “Grass” were areas of grazing or otherwise unimproved grassland.

[17] Notwithstanding the fact that a merk is not a unit of measurement of land, transmissions of land ownership in terms of merks took place and were registered in the General Register of Sasines. By Notarial Instrument in their favour recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland on 3 March 1920, the Trustees of William Mowat Cameron of Garth came to own the 6.5 merks land which had belonged to John Hoseason in 1815. By disposition dated 3, 24 and 25 May 1921 (“the 1921 disposition”) said Trustees conveyed part of this land to Margaret Moar, Hannah Moar and Mrs Emilie Catherina Elizabeth Tredob or Moar in liferent and to Hilda Margerita Moar and Bella Florence Moar, daughters of the said Mrs Emilie Moar, in fee. The subjects being disponed are delineated red and shaded pink on a tracing annexed to the disposition. Production 3 is an office copy of this deed. It includes a copy of said tracing but the copy appears to contain markings and annotations which apparently do not appear on the tracing attached to the original disposition. Production 80 is another copy of said tracing, similarly marked and annotated. In addition to disponing land this deed conveyed “a share pro indiviso in the common Cow park adjoining the said Croft or Holding to the extent of a right to graze three cows thereon and one fourth share pro indiviso in the unenclosed grazing delineated and coloured yellow on the said Tracing annexed hereto to the extent of a right to graze four sheep thereon”. There have been no subsequent intromissions with this land and the descendants of Hilda and Bella Moar, who had emigrated to the United States with their mother by the time the disposition was granted, have not been traced.

[18] The tracing attached to the copy Southouse title deed bears no scale but it is based on the 1:10,560 1902 Second Edition OS Zetland Sheet XI map. Accordingly, within the limitations of the scale of such documents, it is possible to identify sufficient points of reference such that the approximate location, extent and orientation of the disponed subjects could be identified on the ground. When an attempt is made to transpose the footprint shown on the tracing onto a modern OS map it accords only to a very limited extent with Southouse croft as shown, for example, on production 9. Instead the result is broadly as shown on production 67. In particular, the positioning and orientation of the disponed subjects in the area which is accepted by parties as having been arable land since the days of the division of runrig bears little comparison with what is now accepted as being the arable land of Southouse in that area.

[19] Of the seven merks land held by Gilbert Scollay in 1815, five came to be disponed to Mary Ann Brown, Johan Brown, Jemima Brown and William Andrew Brown (the second respondent) and the survivors or survivors of them by disposition in their favour by the Trustees of Mrs Mary Collyns recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland on 21 June 1957 (“the 1957 disposition”). Production 14 is an incomplete copy of this deed. It refers only to “the five merks land in Cunnister … formerly belonging to Robert Scollay”, contains no bounding or other description of the subjects being disponed and has no plan attached. The subjects disponed are said to be more particularly described in an Instrument of Sasine in favour of William Nisbet recorded in the Particular Register of Sasines etc for the Shire of Zetland on 8 April 1852. A copy of this deed is production 58. It does not in fact contain a significantly more detailed description of the land being disponed. Mary Ann Brown, Johan Brown and Jemima Brown were the late aunts of the second respondent. There having been no further intromissions with this land, title to it now stands in the second respondent’s sole name. The first and second respondents contend that this is the title deed which pertains to the Haa. The applicant says that said five merks are to be found not within the township of Cunnister at all but in the scattald.

[20] Similarly, of the 14 merks held by Hosea Hoseason in 1815, three and a half came into the ownership of Thomas Brown, father of the second respondent, by disposition in his favour by Theodore Hoseason Brown and Laurence Charles Kerr dated 30 October and 9 November and recorded in said Division of the General Register of Sasines on 16 November 1959 (“the 1959 disposition”). Production 15 is a copy of this deed. The subjects disponed are described in merks and said to be “as hitherto occupied and possessed by the said Thomas Brown as tenant thereof” and to be more particularly described in and disponed by the disposition by James Hoseason and Another in favour of James Hoseason in liferent and Arthur Cheyne Hoseason and others in fee dated 28 December 1864 and recorded in the New General Register of Sasines etc on 30 March 1865. That deed has not been produced. There have been no further intromissions with this land and it would now seem to be held either by the second respondent as his father’s heir or by the second respondent and his sister, Miss Charlotte Brown, jointly, depending upon whether the provisions of the Succession (Scotland) Act 1964 applied on the death of Thomas Brown. The first and second respondents say that the land being disponed in these deeds is Meegie’s. Again the applicant says that these merks are not in Cunnister township but in the scattald.

[21] The Moar family, to whom part of John Hoseason’s 6.5 merks were disponed in 1921, had already, by that time, occupied Southouse for many years. Production 85 contains reference to an application made to the original Crofters Commission in 1887 for the fixing of a fair rent for, among others, the Southouse croft, then occupied by Thomas Moar. Production 85 states the area of the croft at that time to have been 4 acres 3 roods 23 poles, arable, and 8 acres, 1 rood, 24 poles outrun. This Crofters Commission reference is to “Record 128”. The original application, which we have examined, states the extent of the croft to be 4 acres arable and 4 acres outrun but the Schedule to the Commission’s Annual Report for 1892 gives the same acreages as are contained in production 85.

[22] Margaret, Hannah and Emilie Moar and Emilie’s daughters, to whom the land was disponed in 1921, are shown as being resident at Southouse, along with their mother and a brother, in the census return of 1911, an extract from which is production 82. The house in which they lived is shown as the roughly “L” shaped building which is the eastmost of five buildings shown above the letters “F. P.” on productions 87 and 92. It has been derelict for many years and has not been used at any time by any of the parties to this action.

[23] The Brown family have lived or crofted in Cunnister for at least five generations, going back to the second respondent’s great-grandparents. William Brown, the second respondent, now aged 73, was born in Cunnister and lived there until 1970 when he moved to East Yell, where the first respondent was born and brought up. William Brown grew up working the Haa with his parents and his paternal aunts.

[24] The areas which correspond broadly to what are now fields 7440, 7143, 6744 and 6955 were already arable by 1817. The areas corresponding broadly to fields 7360 and 6965 had been areas of grass and used for grazing in 1817 but had become arable or at least improved ground by 1902. Field 8161 has never been arable.

[25] Running the length of the eastern boundary of field 6744 is a slightly raised strip of ground, about sixmetres in width.For at least a part of its western edge there is evidence of the remnants of a dyke or division of some sort. This strip is what the respondents and Mrs Bowler know as “the Minister’s Merk”. It is worked by Charlotte Brown, the second respondent’s sister, along with the rest of field 6744. The rest of the field has been occupied by the Brown family since some time before 1938, the year in which the second respondent was born, and in the second respondent’s youth his father and aunts worked it. It was used mainly for growing hay. It was rented from a Mr Hoseason at that time. This field, inclusive of the “Minister’s Merk”, has been divided from field 7143 by a fence since at least 1940, the fence following the line shown in production 9.

[26] Field 6955 was fenced off as a separate field more recently. It was at one time left open along its eastern boundary but subsequently that too was fenced. Also, at some stage, the fence line between fields 6744 and 7143 extended to the north to meet the southwest fence of 7360 – such that there were two rather than three enclosures.

[27] Fields 6965 and 7360 have been separated by a fence since the 1950s when Arthur Moar received a grant for that purpose. Prior to that there had been no fence between them. The line of Mr Moar’s fence was as shown in production 9. That fence has been moved by the applicant so as to take in part of field 6965. The line of the present fence is shown on production 46.

[28] As well as fencing field 7360 from field 6965 in the 1950s Arthur Moar also reseeded it. He grew corn and potatoes in that field in the 1950s.

[29] Field 8161 has always been rough grazing. It has never been cultivated.

[30] Field 7740 has been occupied by the Brown family as part of the Haa throughout the second respondent’s lifetime. It was known to the second respondent’s parents as “the Haa Rigs”. They ploughed it and took crops, including crops of potatoes and kale, from it. So have William and Arnold Brown. In more recent years, however, rather than being ploughed and cropped it has been cut for hay or silage. The first respondent has also used it for grazing sheep. On one occasion the applicant cut it for silage in the belief that it was common land in which Southouse had an interest and on the principle that if the first respondent could cut it one year then he, the applicant, could cut it another year.

[31] During the tenancy of the late Mr Bowler (see below) field 7740 and some land to the east, south and southwest of it was fenced as shown on production 46. Since then the first respondent has removed the northeast fence and altered the boundary of the field so that the line of the fence which represents the field’s most easterly boundary has been extended, roughly as a continuation of that line, up to the public road.

[32] Generally to the south of fields 6249, 6448, 6744, 7143 and 7740, in the area between the southmost boundaries of these fields and the shore of the South Ayre of Cunnister, there is an area of land known as “the meadow” or “the cow meadow”. It extends to approximately 3.5acres. Its general vicinity is shown, marked “Common Cow Meadow”, on production 48. It is divided into two as indicated on production 71 but the precise extent of the whole and the line of division between the two parts is not clear in modern times. In the second respondent’s youth, that is to say in the 1940s and 1950s, it was used for grazing by various Cunnister crofters but chiefly by Southouse. It has not now been used for many years and has reverted to rough grazing.

[33] Some distance north of the township of Cunnister there is an area of land extending to in excess of 39 acres, formerly part of said scattald, belonging to the Church of Scotland and being the Fetlar minister’s glebe. This is rented from the Church of Scotland by Charlotte Brown. It is shown on production 11.

[34] In or around 1991 Mr Doug Bowler obtained the tenancy of Southouse Croft. Around the same time he and his wife became owner-occupiers of Midhouse Croft. Mr Bowler subsequently also became tenant of the Haa as the first and second respondents consider it to be. He and his wife worked all three units together, partly for general crofting purposes and partly for pig farming. Mrs Thomason worked for them in their pig farming business and her husband also helped out from time to time.

[35] In or around 1994 a dispute arose between Mr Bowler and the younger brother of the third respondent about land upon which a shed had been built. In order to resolve this dispute the assistance of a Mr Arthur Moar and his knowledge of Cunnister boundaries was invoked.

[36] Mr Moar, who was an uncle of the second respondent, worked both Southouse and Midhouse from some point in the 1940s until he left Cunnister for Sandwick, on the Shetland mainland, sometime around 1957/58. He had grown up in Cunnister, having come there at the age of 18 months, in 1922/1923. He was thoroughly familiar with the boundaries of the Cunnister crofts. He and Mr Bowler produced what is production 83. It is a map of Cunnister with handwritten annotations made by Mr Moar and Mr Bowler. Production 17 is a copy of an affidavit by Mr Moar dated 11 March 1994 and prepared in connection with Mr Bowler’s dispute with Mr Williamson.

[37] There are two sets of annotations on production 83. The pencilled annotations were made by Mr Moar and Mr Bowler as aforesaid but there are also earlier annotations, which appear to have been on an earlier map from which production 83 was copied.

[38] Production 83 has “SH” for Southouse marked on fields 7143, 7360 and part of 8161 but not on field 6744, which is marked “Mrs Brown”, nor on field 6955, nor on field 6965, save for the Southouse buildings situated in that field. It also has “Mrs Brown” written on field 7740. It has a linking symbol akin to an area brace linking fields 7143 and 7360 across field 6955. Fields 6965 (other than in relation to the Southouse buildings) and 6955 contain no markings indicating to which croft they pertain.

[39] The patchwork areas shown lying to the northwest, south and east of the nucleus of the township on production 83 are areas of outrun. The annotations thereon represent Arthur Moar’s recollection of the results of a division of that land carried out at some point after the division of runrig carried out in 1817 and before William Brown’s birth in 1938. The individual areas were areas allocated for the exclusive use of the crofts or tenants whose name or initials they bear. Until the 1950s, when the practice died out, crofters in Cunnister would tether animals, both cattle and sheep, on their individual areas of land within these patchworks.

[40] At no time during their occupation and working of land at Cunnister did Mr and Mrs Bowler occupy or work field 6744. They did, however, believe that the tenancy of Southouse included part of field 6965. In 1992 Mr Bowler built a corrugated iron shed (referred to in the evidence as “the tin shed”) in that field. Mr and Mrs Bowler were subsequently told by Arthur Moar that they had built the shed on land belonging to William Brown. They apologised to Mr Brown for having done so and reached an agreement with him which allowed them to carry on using the shed on the understanding that when they gave up use of the shed it would become his. It then became Mr and Mrs Bowler’s understanding that the only parts of field 6965 which belonged to Southouse were the site of the Southouse crofthouse, garden ground and byre.

[41] Mr Bowler died in 2000. His wife succeeded to the tenancy of Southouse. In 2003 she sub-let Southouse to Mr Thomason and then, with effect from Whitsunday 2005, assigned the tenancy of the croft to him. Mrs Bowler surrendered the tenancy of the Haa and William Brown let the croft to his son, Arnold, in December 2007.

[42] Production 50 is another map of Cunnister, this one over-written by Mrs Bowler on 26 July 2012. Despite a confusing reference on the handwritten docquet to the effect that the land had been part of Midhouse Croft for at least 60 years and subject to a qualification which we come to below, the hatched areas on this map represent Mrs Bowler’s understanding of the boundaries of Southouse as at July 2012. The hatched areas comprise fields 7143, 7360, part of field 8161 and the garden area of Southouse in field 6965. Beyond those she also understood that Southouse had small areas of grazing land where the letters “S H” appear among the patchwork of areas at the southern end of the township on production 83. She also understood there to be a right to graze some sheep at Leogie, which is part of said scattald, shown on production 47.

[43] The qualification to which we refer is Mrs Bowler’s evidence to the effect that part of field 6955 was also part of Southouse. That part would be represented by the land within that field to the east of a line drawn from the northern end of the line dividing fields 7143 and 6744 on production 50, diagonally to the north or northwest apex of that field, where one might access field 6965.

[44] Production 2 is a copy letter from the Crofters Commission dated 30 May 2005 confirming amendment of the Southouse entry on the Register of Crofts to show the assignation in favour of the applicant. It encloses an amended extract from the Register which shows an arable extent of 1.72 ha and outrun in individual occupancy of 3.33 ha.

[45] Production 44 is a letter from the Crofters Commission to the applicant dated 10 December 2004 advising him that Mrs Bowler’s application to assign the tenancy of the croft to him had been approved and enclosing a note explaining how the decision had been arrived at. That note contains a description of the croft and refers, at para 3.7, to a 12m x 8m corrugated steel building as being situated on the croft. This is a reference to the “tin shed” in field 6965. Whether the tin shed was part of Southouse was not an issue which was before the Commission when they issued this Note.

[46] Either when he became the sub-tenant or, at the latest, when the tenancy of Southouse was assigned to him the applicant was given production 83 by Mrs Bowler.

[47] The applicant has lived in Yell all his life. Prior to taking on the sub-tenancy of Southouse he was crofting at Cunnivoe, some distance north of Cunnister.

[48] When Mr and Mrs Thomason first occupied Southouse they did not understand it to include either fields 6965 or 6744 and they believed it to include only that part of field 6955 which represented a northward extension of field 7143, the other part belonging, they thought, to what the respondents call Meegie’s. On occasion, however, they were given the use of field 6744 by Charlotte Brown at lambing time. It was only when Mrs Thomason began researching the historical position, and in particular when she discovered the copy disposition which is production 3, that they came to consider these fields, including the whole of field 6955, to be part of Southouse.

[49] When Mr and Mrs Thomason first occupied Southouse field 6955 was not fenced as a separate field. By that time Mr Bowler had fenced fields 7143, 6744 and what had been the separate field of 6955 as shown on production 46.

[50] In or around 2009 a dispute about boundaries arose between Arnold Brown, who was by then tenant of the Haa, and the Thomasons. Production 41 is a copy of a letter from Arnold Brown to Mr Thomason dated 28 June 2009 giving notice that Mr Brown intended to “re-claim the Haa ground of which I am the sole tenant … [including] the tin shed and the park immediately above it”.

[51] The croft of Southouse comprises at least fields 7360, 7143 and parts of 6955 and 8161. The original crofthouse, long ruinous, is situated in field 6965 as is the former byre for the croft. These are the buildings shown as pertaining to the croft on production 9. The building marked “South House” on production 63 and on the original OS 1:2500 1971 map is not in fact the crofthouse for Southouse and has been so marked erroneously.

Submissions

[52] In the following summary of parties’ submissions we have substituted the correct number for field 7663, i.e. 8161.

(i) The applicant

[53] The starting point of the applicant’s case was the 1921 disposition, the dispositive clause of which contains the following description of the subjects being conveyed:-

“ALL and WHOLE the Croft or Holding at Cunnister in the Island of Yell aforesaid as … presently occupied by the said Margaret Moar and Hannah Moar jointly as delineated and coloured red on the tracing annexed and signed by us as relative hereto with all buildings and erections thereon and the whole parts pertinents and privileges pertaining thereto including a share pro indiviso in the common Cow park adjoining the said Croft or Holding to the extent of a right to graze three cows thereon and one fourth share pro indiviso in the unenclosed grazing delineated and coloured yellow on the said Tracing annexed hereto to the extent of a right to graze four sheep thereon which said lands and others hereby disponed are situated in the Parish of Yell and County of Zetland and which croft is part of six and a half merks land in Cunningster referred to in the second place (first) in the Notarial Instrument in our favour as Trustees foresaid recorded in the Division of the General Register of Sasines applicable to the Counties of Orkney and Zetland, for publication and also as in the Books of Council and Session for preservation on 3rd March 1920 … ”

[54] The applicant submitted that the extent of the croft as shown on this tracing includes the whole of fields 6955 and 6744. It was said that the width of the croft (east to west) as shown on this plan “proportionately … must include not just Field No. 7143 … but also, in addition, the remainder of Field No. 6955 … and Field 6744 … ”. It was said that these fields together with field 7143 form the arable inbye land pertaining to the croft while fields 7360, 6965 and part of 8161 formed the outrun of the croft. The applicant argued that this was supported by productions 49 and 94. (Production 49 was lodged by William Brown and shows fields 7143, 7360, part of 8161 and areas of ground at the Southouse crofthouse (situated in field 6965) as comprising Southouse. Production 94 is a rough sketch prepared by Miss Charlotte Brown but lodged by the applicant. It shows, without field identification numbers, what appear to be fields 7143 and part of 6955, marked as arable, 7360, marked as “was rough grazing fenced and reseeded 1950’s” and part of field 8161, marked as “still rough grazing”.) Additionally reference was made to production 86, a production which extrapolates information from a fair rent application made to the original Crofters Commission by Thomas Moar in 1887 which, it was said, specifies the arable land of the croft as extending to 4 acres, 3 roods and 23 poles, equating to 4.89 acres (1.98 ha) or thereby. This was not far removed from the total of 4.31 acres (1.74 ha) which one got from the addition of the stated areas of fields 6955, 6744 and 7143 on the 1971 OS map.

[55] Further reliance was placed by the applicant on the contents of the Crofters Commission Register of Crofts as shown in production 2, a letter from the Commission to the applicant dated 30 May 2005, confirming the recording of the assignation of the tenancy of the croft in his favour with effect from Whitsunday of that year, which states the arable extent of the croft to be 1.72 ha.

[56] The applicant’s submissions went on to attack the evidence led by the respondents to the effect that field 6744 and part of 6955 were not part of Southouse. That evidence was said to be vague almost to the point of non-existence. Charlotte Brown, who was said to have rights in these areas, had not been called as a witness. So far as the Minister’s Merk was concerned, no lease or evidence of payment of rent to the Church of Scotland had been produced whereas the applicant had produced evidence that any land leased by Miss Brown from the Church of Scotland was outwith the township; productions 11 and 91. These productions show an area of 39 acres, 1 rood, 6 poles and 6.5 yards described as the Glebe of the Parish of Fetlar and situated to the north of the public road and some distance to the north of the township of Cunnister. In other words it is entirely distinct and separate from the Minister’s Merk said to be part of, or adjacent to, Meegie’s.

[57] So far as Meegie’s itself was concerned, (i) no entry from the Crofters Commission Register of Crofts had been produced relating to any such croft, (ii) there was no record of any such croft having any right in the common grazings and (iii) no heritable title had been produced which was capable of showing clearly that Meegie’s belonged to the respondents. The respondents had instead relied on usage of the land. But usage of the land by anyone other than the tenant of the land was irrelevant: rights to croft land could not be acquired simply by use or prescription (Macdonald v Prentice’s Trustees 1993 SLT (Land Ct) 60; Newlands v Assynt Trust Ltd 2008 SLCR 276).

[58] In those circumstances we were asked to prefer the applicant’s evidence in relation to fields 6955 and 6744 to that of the respondents.

[59] So far as field 6965 was concerned, when Mrs Bowler had assigned the tenancy of the croft to the applicant the Crofters Commission had obviously considered that this field was part of the croft. That was because in the note of its decision to approve the assignation of the tenancy of the croft to the applicant it had referred to the croft as having on it “another 12m x 8m corrugated steel building … for storage and livestock accommodation”. That was a reference to the “tin shed” situated in field 6965. Furthermore Mrs Bowler had, it was said, sold this shed to a Mr Severn (production 45) notwithstanding her evidence that her husband had agreed that it would revert to Mr William Brown once it was no longer needed. Moreover field 6965 was not shown as being part of the Haa on the map of croft boundaries, production 83, which Mrs Bowler said she had given the applicant as a means of identifying his boundaries.

[60] Historically the area which included field 6965 had been demarcated by a dyke and not internally fenced; production 87. The walled-in feature shown on the opposite side of the road from the dyke just referred to was also to be seen on productions 3 and 80. This showed that the yard dyke shown on production 87 formed the northeast boundary of the Southouse croft.

[61] The position of the crofthouses in relation to the croft land was also significant. The crofthouses to the west of Southouse were all surrounded by their own croft land. It would therefore be anomalous if the Southouse crofthouse stood on land belonging to another croft. But that was not the case. The plan attached to the Southouse title deed was capable of including the land on which the Southouse buildings stood. Proportionately the area shown on the plan as comprising Southouse must include both fields 6965 and that part of field 8161 contended for by the applicant.

[62] For all of these reasons we should find that field 6965 and said part of field 8161 formed part of Southouse.

[63] So far as the cow park was concerned, in the course of the proof the applicant had conceded that this did not include any land beyond the old township hill dyke as shown green on production 28 and yellow on production 29. In particular the area hatched in blue on production 29 was not included but was instead part of the scattald. But the applicant continued to maintain that the rest of the area shown green on production 46 was the cow park referred to in the Southouse title deed: the area adjacent to the croft on which Southouse had a right to graze three cows.

[64] The applicant submitted that the respondents’ contrary position – which was that the cow park, or cow meadow as they called it, was confined to an area to the south of the croft and in the vicinity of the South Ayre of Cunnister – could not be correct. That was because that area was too marshy and, in any event, too small to sustain grazing by three cows from Southouse in common with other cows from other crofts. It was more likely that the cow park comprised field 7740 and the rest of the area coloured green on production 46. That was consistent with the position shown on the title plan, production 80.

[65] There was evidence that this area (except field 7740) had at some stage been divided into a patchwork of plots of ground for use by the different crofts, as shown on production 83. But any such division had obviously been informal and none of the other crofters represented in this case seemed to know what their entitlement was in relation to this land whereas the Southouse title deed was clear as to Southouse’s right to graze three cows on it. The patchwork shown on production 83 did not correspond with any fencing on the ground, either now or historically, and did not represent the current legal rights of the various crofts in that ground. The best evidence of the status of this area of ground and of the Southouse croft’s rights in it was, therefore, the Southouse title deed and plan. Accordingly we should find that, subject to the foresaid concession, the area shown green on production 46 was the cow park referred to in that title deed and that Southouse had a pro indiviso right to graze three cows on it.

(ii) The first respondent

[66] The first respondent submitted that both the applicant and Mrs Thomason had given evidence that they had not known the true boundaries of the croft when the applicant had become tenant. Instead of making it their business to find out they had relied on knowledge gained by Mrs Thomason from having worked with Mr and Mrs Bowler from time to time. Mrs Thomason’s understanding could not, however, be relied upon because she had not appreciated that Mr and Mrs Bowler had tenanted the Haa as well as Southouse and had run the two crofts as one. It would not, therefore, have been very clear to her what belonged to the Haa and what belonged to Southouse.

[67] A far more reliable source of information was production 83, given Arthur Moar’s long association with Cunnister and the fact that he had at one time been tenant of Southouse. Mrs Bowler had given evidence that a copy of what is production 83 had been given to the applicant when he had taken on the sub-tenancy of the croft in 2003. The applicant had denied this, saying that production 83 had been given to them by Mrs Bowler in connection with his wife’s interest in the history of the township. But it would be surprising and careless of the applicant and his wife if they had not resorted to all available sources of evidence, including maps and local knowledge, so as to be clear as to what they were getting and where their boundaries were. We should therefore accept the evidence of Mrs Bowler on this matter and reject that of the applicant and his wife.

[68] Likewise we should prefer the evidence of William Brown, which supported production 83, to that of the applicant and Mrs Thomason. Mr Brown, like Mr Moar, had had a long association with Cunnister. He had grown up in the township and worked the land along with his parents and grandparents. Where his evidence differed from that of the applicant and Mrs Thomason, we should prefer the evidence of Mr Brown.

[69] So far as the 1921 disposition was concerned, the first respondent’s submissions made the following points:-

(a) It was admitted that Southouse had a pro indiviso right to graze four sheep on the shaded area at Leogie shown on the title plan.

(b) Mrs Bowler, Mr Arnold Brown and Mr William Brown had given evidence that the grazing rights referred to in the disposition were in the area known as Leogie, shown at letter “B” on production 29 and also on production 47.

(c) It was clear that the title plan did not include, within the area of the croft, marks representing buildings which were shown on other plans. In particular it did not show the two buildings shown on production 9 which were known to be the Southouse crofthouse and byre. It was acknowledged that the plan did not have a scale but it would be surprising if the drafter had shown the buildings as being outwith the delineated area comprising the croft if in fact they ought to have been within it.

(d) The disposition referred to a “cow park” but William Brown had never heard of such a park. He had, however, heard of a “cow meadow”. Mr Brown’s position was supported by historical references to a “meadow” in production 77 whereas there were no references to a “cow park”.

[70] So far as field 8161 was concerned, it was accepted that part of it belonged to Southhouse, that part being (broadly) as shown in productions 48, 49 and 63. The part between the northern boundary of the Southouse area of field 8161 and the track to the hill was part of the Haa.

[71] On the other hand, no part of fields 6744 or 6965 belonged to Southouse. Field 6744 was a distinct croft, albeit it had never been registered as such. It was known as “Meegie’s Croft”, after a former tenant. It was submitted that the relevant title deed was the 1959 disposition. Thomas Brown had been William Brown’s father. No formal steps had been taken on or after Thomas Brown’s death to transfer the title to anyone but the successor provision in the title carried ownership to William Brown and his sister, Charlotte. The disposition was of the land “as hitherto occupied and possessed by the said Thomas Brown as tenant thereof”. William Brown had given evidence that his father had occupied Meegie’s as tenant before acquiring title to it.

[72] The first respondent also submitted that the scattald land pertaining to Meegie’s was that marked “K” on production 29. Meegie’s croft must have arable land over and above scattald and that arable land was field 6744. Reference was made to production 68, a handwritten sketch recovered by Mr Williamson from a 1939 Land Court process, which shows Mr Thomas Brown’s arable land as being immediately to the east of what is described as the “Arable land of Park”, which is indisputably field 6448 on production 9.

[73] Reference was also made to production 71. The area marked “HH” was land owned by Hosea Hoseason. Under reference to production 88 it was known that this land had been sold and divided and now comprised the strips of land pertaining to Midhouse, Park and Meegie’s. Field 6744 had thus, it was submitted, never been part of Southouse but was a distinct croft, owned by the Brown family and known as “Meegie’s”. It was submitted that any alternative proposition would mean that the 3.5 merks disponed to A. C. Hoseason had no arable land within the township. Such a proposition ought to be rejected.

[74] As to the whereabouts of the Minister’s Merk, the first respondent submitted that this was not clear. What was clear was that the raised strip of land running along the eastern boundary of field 6744 had been a dyke. Had fields 6744 and 7143 been part of the same croft it would have been unusual to have a dyke running between them. It was more likely that such a dyke represented a proprietorial boundary between the two fields. It supported the notion that field 6744 was not part of Southouse.

[75] With regard to field 6955 the first respondent’s submission was that it was shared between Southouse and Meegie’s. Reference was made to production 63 as showing where the division was. Production 63 was prepared by the first respondent. Productions 48 and 49, prepared by Charlotte Brown and William Brown respectively, were said to support this division. There was also support for a division of this field between the two crofts, although not of the line of division shown on production 63, in the evidence of Mrs Bowler. The first respondent, Mrs Bowler and said productions were all at one in saying that field 6955 had never belonged solely to Southouse.

[76] With regard to field 6965, the first respondent’s submission was that it was part of the Haa and not of Southouse. Reference was again made to a comparison between the Southouse title plan and production 9 and the fact that the title plan appears to exclude the Southouse crofthouse and byre from the area delineated as showing the croft land. The Court should accept the evidence of the first respondent, Mrs Bowler and William Brown to the effect that all that belonged to Southouse in field 6965 was the site of the crofthouse (including, presumably, the garden ground pertaining thereto) and the byre.The applicant had been alerted to this at the outset of his tenancy as was disclosed in Mrs Bowler’s letter to William Brown dated 19 September 2009 (production 16) spoken to by Mrs Bowler in evidence.

[77] Production 71 supported this. The area marked “J H Grass” on that production corresponded to what was now field 7360 and the area marked “G S Grass” immediately to the west thereof would be field 6965. Reference was made to production 88 as showing that “G S” land belonged to the Haa.

[78] So far as field 7740 was concerned, all the maps produced showed it to be unlikely that this was part of a larger cow park as maintained by the applicant. Instead the evidence of William Brown to the effect that it had belonged to the Haa, been known as “Haa Rigs” and been worked by his parents and grandparents, growing potatoes and other crops on it, during his lifetime should be preferred. Throughout Mr Brown’s time in Cunnister this park had been arable land and always cultivated. It in fact was the only arable land pertaining to the Haa and if the applicant’s evidence as to the status of this field was to be accepted it would mean that the Haa had no arable land within the main arable part of the township. Instead the only land it would have would be the Haa Yard and, if the Court were to find in favour of the first respondent on the matter, field 6965. Such an outcome would also run counter to production 71. That production showed “G S Land” as lying to the east of the arable land belonging to “J H”. If it was accepted that the “J H Land” belongs to Southouse it must follow that Gilbert Scollay had had arable land to the east of Southouse, that is to say in the area of field 7740.

[79] This conclusion was also supported by production 83 on which field 7740 was marked with Mrs Brown’s name. Also, Mr Williamson had given evidence that he had always known this field as “the Browns’ land”. The field was therefore not part of any shared grazing area but was instead arable land belonging to the Haa. The “cow meadow”, rather than “cow park”, in which Southouse had grazing rights was the area of meadow shown on production 83.

(iii) The second respondent

[80] William Brown also referred in his submissions to the fact that Mr and Mrs Thomason had maintained that they had not been shown the boundaries of the croft by the time Mr Thomason had taken over the tenancy. They had, said Mr Brown, also disregarded what was shown on any maps they had been given. Instead they had relied on their understanding as gleaned from Mrs Thomason having worked with Mr and Mrs Bowler and Mr Thomason having helped them out from time to time. The result was that Mr and Mrs Thomason did not know the boundaries of the croft at all.

[81] In giving his evidence Mr Thomason had been very unsure of everything. Most of his answers had consisted of reference to the fact that it had been his wife who had done the research and that he himself could not answer the question being put from his own knowledge.

[82] Mr Brown also criticised the quality of Mrs Thomason’s evidence. She had constantly referred to maps, some of which did not prove anything and some of which contradicted what she had been saying. Both Mr and Mrs Thomason seemed to be confused as to the distinction between outrun land, common grazing and arable land.

[83] With reference to the Southouse title plan it was Mr Brown’s view that the area shaded yellow at the southeastern end of the township had been coloured in later and had not appeared on the original tracing. That was because (a) it was in a different shade of yellow (from the other grazing area shown at Leogie); and (b) it was in different handwriting from the printed script which was used elsewhere on the tracing. Mr Brown also drew attention to the fact that the 1921 disposition itself was not signed but rather had the signatories’ names printed on it. It was therefore questionable whether this was a valid document at all or was in fact the current title relating to Southouse.

[84] Field 7740 had been worked by his family for as long as he could remember. He himself had also grown crops on it. It could not be part of any cow park. There was, however, a shared grazing area which he had always known as the “cow meadow”. It was part of field 8328. It had mostly been left to Southouse because Southouse had so little other land in that area.

[85] The Minister’s Merk was situated between fields 6744 and 7143. It had nothing to do with Meegie’s, the Haa or Southouse. It belonged to the Church of Scotland. It had been leased to a Mr Gilbert Johnson in Mr Brown’s lifetime and when he had moved to Lerwick it had been leased to Mr Brown’s mother, Mrs Anne Brown.

[86] Arguably crossing the line between making submissions and giving evidence, Mr Brown’s submissions gave the following account of the history of Meegie’s croft. Meegie was an elderly lady whom his father had helped a lot. She had eventually passed the tenancy over to Mr Brown’s father, who had then bought the croft in 1959. Meegie’s had then passed down to William Brown and his sister, Charlotte, on the death of their father and Charlotte currently used the croft.

[87] It had been shown clearly in evidence that the 1959 disposition was the title to Meegie’sand Mr Williamson had given clear evidence as to where the common grazing right pertaining to Meegie’s was located. It had therefore been proved that field 6744 could not possibly form part of Southouse.

[88] Arthur Moar had been William Brown’s uncle. Mr Moar had lived in Midhouse but had also rented the Southouse croft. He had, therefore, known the boundaries of both crofts and, indeed, of all of the crofts very well. He had been asked by tenants of Midhouse to outline the boundaries of all the crofts in the township and he had done so and sworn an affidavit confirming that these were correct; productions 17 and 83

[89] The Haa had been in Mr Brown’s family since 1868 and had been bought by him and his aunts in 1957. The 1957 disposition was the relevant deed. He had lived in Cunnister until 1970. He had worked the land from an early age. He had ploughed field 7740 with horses and then with a tractor. Throughout his life it had been part of the Haa’s arable land. They had used to tether sheep and horses on the individual parts of land in the outrun area, field 8328.

(iv) The third respondent

[90] Mr Williamson lodged a brief submission in his capacity as Clerk to the Sandwick, Sellafirth & Dalsetter Common Grazings. In it he explained that his main concern in relation to the application had been the apparent confusion as to where the boundary between the Common Grazing (Scattald) and the township of Cunnister lay. This concern had been triggered by the inclusion of part of the scattald in land over which Southouse was said to have rights, as shown in production 72. This is a reference to the wedge of land to the east of the township hill dykes shown as a part of the scattald pertaining to “W. Nisbet” on production 28. However the applicant had conceded in the course of the proof that this was an error and Mr Williamson was therefore satisfied on that score.

[91] Mr Williamson’s letter goes on to say that he still has a concern “that at some time a confusion has occurred between South-house’s Common Grazing (Scattald) share and its share in the Township which has resulted in an increase in its registered area of outrun”. He returns to this below.

(v) The fourth respondent

[92] Mr Williamson also lodged submissions on behalf of his mother.

[93] The evidence which had been put forward by Mr and Mrs Thomason in support of their case had been unconvincing and contrived. The results of Mrs Thomason’s research appeared to contradict the applicant’s case and her own assertions.

[94] They had attempted to convince the court that there was no area of outrun in Cunnister laid out as areas for the individual crofts and marked by met stones despite the fact that some of the evidence they had produced described both the met stones and the areas which had been identified as belonging to the various crofts.

[95] They had also attempted to convince the court that there was no “Minister’s Merk” in the arable area of the township despite the fact that there was clear reference to it in the “Division of Runrig” plan which is production 71. Not only was the Minister’s Merk referred to on that plan, which dates from 1817, but William Brown had given evidence that he remembered it being worked separately from any other land. It could be seen from aerial photographs and was also readily visible on the ground.

[96] According to the note on the Division of Runrig plan the Minister’s Merk was situated in Mr Hosea Hoseason’s fields “yet undivided from his Land by Grass and Meadow”. There is also a note at the south of the fields shown as “J H Land” and “G S Land” on this production which says “Meadow belonging to H. Hoseason, G. Spence and the Minister’s Merk”. Mr Williamson submitted that the field marked “J H Land” on production 71 could not be Meegie’s, as Mr and Mrs Thomason contend. That was because the Minister’s Merk was situated in Hosea Hoseason’s former land as shown on production 71. One would not expect to find the Minister’s Merk in Meegie’s if Meegie’s was part of “J H Land” rather than “H H Land”. Instead it would be in one of the fields, numbers 6249 and 6448, west of that since they would be Hosea Hoseason’s former land as shown on production 71.But the fact was that the Minister’s Merk was identifiable today as part of field 6744. That field could not therefore be “J H Land”, it had to be within “H H Land” on production 71.

[97] Mr Williamson also argued that if Mr and Mrs Thomason were correct in their analysis of production 71, field 7740 must have been non-existent at the time of the runrig division. However if one looked at production 71, the most easterly arable field shown there (marked “G S Land”) lined up best with field 7740. That would also be consistent with the ownership of Gilbert Scollay’s land having passed to the tenant of the Haa, who had worked it and paid rent for it. Moreover the condition of this field suggested that it had been arable for the same length of time as the other arable strips in the township.

[98] Mr Williamson sought to rebut Mr and Mrs Thomason’s claim that the field marked “G S Land” on production 71 belonged to Southouse. That claim rests on the fact that Gilbert Scollay had passed two merks land to J Hoseason which had then passed to Garth Estate and ultimately become the title to Southouse. He pointed out that the disposition by Gilbert Scollay to John Hoseason had been in 1797, some 20 years before the division of the runrig. That having been so, the land in question would surely be shown as belonging to John Hoseason rather than to Gilbert Scollay, on production 71.

[99] Mr Williamson went on to draw attention to what he said was another anomaly arising out of Mrs Thomason’s interpretation of production 71. It has to do with the positioning of the division line between the west and east meadows, situated to the south of the arable fields. On production 71 it is shown as starting from a point at the south of H Hoseason’s land, a short distance in from the boundary of that land and “J H’s” land and runs south from there to the shore. Mr Williamson sought to contrast that with Mrs Thomason’s interpretation as shown on production 72, showing the division starting at the south-west corner of Meegie’s, the field she claims to be the one marked “J H Land” on production 71. Although we understand the basis of the anomaly to which Mr Williamson draws attention, other than as criticism of Mrs Thomason’s interpretation of production 71 more generally, we do not consider it of any material relevance to our decision.

[100] Mr Williamson next dealt with the apparent increase in the Southouse outrun, referred to earlier. It stems from the fair rent application made by Alexander Spence and others (including Thomas Moar) to the original Crofters Commission in 1887. Mrs Thomason gave evidence that the outrun area for Southouse as stated in that application had been 8 acres, 1 rood and 24 poles. Mr Williamson had examined the application and found no reference to such an area but instead found the application to state, as the extent of Southouse, 4 acres of arable and 4 acres of outrun. Mr Williamson was concerned that Mr Thomason would next apply for an apportionment of his interest in the common grazing (Mr Thomason taking the view that the outrun land within the township was to be regarded as common grazings – see the confusion referred to at para [91] above) on the basis of this figure and that, if that was approved, he may end up with an area larger than that to which he was entitled. Mr Williamson queried when and how this increase had come about and thought it might have stemmed from confusion between common grazings and outrun.

[101] He also referred to the positioning of houses on production 71. Mrs Thomason’s denial that houses could be seen on this map was not credible: there was a key which showed that the symbols signified houses. Similarly Mr Thomason’s denial that houses could be seen marked on the title plan was not credible when they were in fact clearly visible.

[102] Mr Williamson closed his submissions by introducing what was in fact new evidence as to whether the lady seen standing at the door of a house in the photograph, production 96, which had been produced by William Brown was Meegie, as Mr Brown had averred, or Catherine Nisbet, Banks, Cunnister, as stated in production 101, lodged on behalf of the applicant. Interesting although that new evidence may be, we cannot entertain it at this stage and accordingly we say no more about it.

Resolving the issues

[103] As has already been said, the approach of the parties in this case – the applicant on one hand and the respondents on the other – has been markedly different. The applicant has concentrated on the position as disclosed by historical researches into the eighteenth, nineteenth and early twentieth centuries while the respondents have concentrated on the position as they have known it since then. We will, of course, take account of both. We begin with a chronological survey of the documentary evidence produced.

The Division of Runrig: Production 71

[104] The starting point is the division which took place in 1817. According to the notes of the research carried out on behalf of Mrs Thomason which comprise production 77, this division seems to have been the result of a summons for the division of the Runrig of Basta and Cunnister brought by Hosea Hoseason of Aywick against Thomas Mouat of Garth and others. Accordingly it seems to have been part of a formal legal process. It is apparent that at that time Cunnister comprised a nucleus of houses and arable land surrounded by land held runrig. It is not clear to us whether the arable land itself was held runrig. Normally that would be the case but the quotation from Mr James Hoseason below might suggest otherwise in this case. Also, if we are correct in our view below that the transmissions of merk lands in Cunnister even prior to 1817 were transmissions of specific areas of land then it is unlikely that the arable land was held runrig. At all events the purpose of the division was to allocate areas of land previously held runrig to specified merk-holders in perpetuity, thus putting an end to the runrig system. The same sort of process was being carried in regard to scattalds in Shetland at the same time: see the reference to “an explosion of formal division of scattalds” in Shetland in the mid-nineteenth century in Stair Memorial Encyclopaedia of The Laws of Scotland vol 24 para 310.

[105] The process involved, so far as inbye land (as distinct from scattald) is concerned, was described by the witness James Hoseason in the Sheriff Court case of Christina Brown and Ors v William John Brown 1903 which is extensively noted in production 77. This was a case involving Cunnister. Mr Hoseason was a surveyor experienced in the division of land. In cross-examination he said this:-

“A room or town consists usually of a limited number of merks. In a township the whole land within the dykes is divided among the proprietors of the town, in respect of their arable land. In the town there would be infield land, outfield land, grass land, and probably meadow land. When a town is divided, the proprietors draw according to their merks. What is allocated goes as part of the merk. All towns have been divided before my time. Before the division takes place, the grass and meadow are common. After the division, the grass and meadow land is divided according to the number of merks. It belongs to the merk. It becomes a pertinent of the merk.”

[106] The formality of these divisions is illustrated from other evidence in the same case. Archibald Sutherland, as Sheriff-Clerk and County Clerk of Zetland, gave evidence that he was the “custodian of the Decree of Division of the Scattald of Sandwick and Brough” and undertook to provide an extract from said decree showing James Brown’s entitlement in that scattald effeiring to his “4 merks 4 ures land in Cunnister”. And James Kirkland Galloway, solicitor in Lerwick, produced an “Extract Decree of Division of the Runrig Lands of Aithsetter in Cunningsburgh”.

[107] Production 71 shows landholding within the Cunnister township as it was after the division of the runrig among the merk-holders listed in our findings in fact. Different types of land are described differently. “Land” is used to describe arable land. On our understanding of Mr Hoseason’s evidence as quoted above, it is land so marked which represents the “merks”. “Grass” is used to describe grazing land, being land that had never been cultivated. There is also a reference to “Undivided Meadow belonging to H. Brown, John Hoseason, G Scollay”, to “Meadow belonging to H. Hoseason, G. Spence and the Minister’s Merk” and, to the north of the township, and notwithstanding the fact that the purpose of the exercise was to divide the land among the merk-holders, to an area of “Undivided Grass belonging to the whole Town”.

[108] The production shows the land and grass held or to be held following division by Hosea Hoseason, John Hoseason, Gilbert Scollay and Hosea Brown. We are also told that the Rev James Ingram’s and Mr Gilbert Spence of Hammer’s single merks are “in Mr Hosea Hoseason’s Fields, yet undivided from his Land by Grass and Meadow”. We are also told that Mr Hosea Hoseason, Rev Ingram and Mr Spence share one of the two areas of meadow lying to the south of the arable land in the township. It would appear, from the fact that, unlike the other merk-holders, he is not mentioned by name in the note pertaining to the meadow that Rev James Ingram was the holder for the time being of the Minister’s Merk.

[109] It is thus clear that Hosea Hoseason, John Hoseason, Gilbert Scollay and Hosea Brown all had arable land, grass land and a share in one or other of the two meadows. The position with Rev Ingram and Mr Spence is less clear since their merks had still to be divided from Hosea Hoseason’s subjects. The note about the Rev Ingram’s and Mr Spence’s merks quoted above might suggest that these were to be separated out from Hosea Hoseason’s Grass and Meadow rather than from his “Land”. There is no demarcating line between Hosea Hoseason’s Grass and the Meadow. These are, in that sense, undivided. The note describing this area of meadow reads “Meadow belonging to H. Hoseason, G. Spence and the Ministers Merk”. The strong suggestion there is that Mr Spence’s merk and the Minister’s Merk are situated elsewhere and that what they have in the meadow is a right to share it along with Hosea Hoseason. They would then have a share of meadow in the same way as the other merk-holders had. If that is correct, then the Minister’s Merk itself would be situated not in the meadow but in either the area marked “H H Grass” or “H H Land”. As between these two areas one would expect it to be found within “H H Land”, given that merk lands appear to have related to arable land. This would put the minister and Mr Spence on a par with the other merk-holders: they would have areas of arable land and areas of grazing.

[110] There is no reason to suppose that the Minister’s Merk spoken of today is a different Minister’s Merk from the one being referred to in 1817. It would appear that in 1817 the precise whereabouts of the land to be allocated to it had not been identified. It is reasonable, therefore, to suppose that what has happened since then is that the Minister’s Merk has come to be situated in what is now field 6744. Since the intention was that it be situated somewhere in Hosea Hoseason’s subjects, that line of reasoning would point to field 6744 being within the area shown “H H Land” on production 71.

[111] The applicant’s position was that the term “Minister’s Merk” referred to Rev William Mouat Cameron who had at one time held the 6.5 merks owned by John Hoseason in 1817. The obvious difficulty with that is that it was only some time after the division of runrig that the Rev Cameron came to have title to these merks (see production 88). It is therefore difficult to see how the Minister’s Merk being referred to in production 71 is a reference to him.

[112] We also reject the notion that the Minister’s Merk is to be found not in Cunnister at all but on the scattald, where the Fetlar Glebe is shown on production 11, well away from the centre of Cunnister. The applicant led evidence that this land is tenanted from the Church of Scotland by Charlotte Brown. We do not see that as having any bearing upon the Minister’s Merk in Cunnister. Production 71 clearly refers to a Minister’s Merk within Cunnister in 1817 and there is an identifiable area known as that within the township today. It may be the case that what is shown in production 11 is the share of the scattald which goes with the Minister’s Merk within the township but even if that is wrong it does not detract from the fact of the existence of a Minister’s Merk within Cunnister.

[113] Of course, if Charlotte Brown does rent what the Browns call the Minister’s Merk from the Church of Scotland it ought to have been very easy (assuming her co-operation) for that to be proved. All Arnold and William Brown needed to do was produce a letter from the Church of Scotland to that effect in the same way as the applicant has done in respect of what he says is the Minister’s Merk. That they failed to do so makes us doubt whether there is such a lease in place but it does not affect our conclusion that what is seen today along the eastern boundary of field 6744 is the Minister’s Merk which was being referred to in production 71.

[114] It therefore seems to us that Meegie’s and the Minister’s Merk (taken together, field 6744) are situated in the eastmost part of what is shown as “H H Land” land on production 71. The applicant, however, argues that it is the area marked “J H Land” which is field 6744. This argument depends on the area shown as “G S Land” being field 7143. So we now deal with that proposition.

[115] The applicant contends that field 7440 is not shown, as a separate field, on production 71 but is part of the grass area to the east of the arable land. The respondents contend that field 7740 is shown as a separate field and that it is the field marked “G S Land”. The applicant contends that the “G S Land” is field 7143.

[116] It is certainly true that the area marked “G S Land” on production 71 does not look like field 7740 on production 9. It was, however, unquestionably land belonging to Gilbert Scollay in terms of production 71. The applicant’s argument, if we understood it correctly, was that what is shown as “G S Land” on production 71 represents the merks conveyed to John Hoseason of Bayan in 1797 and that these are part of the Southouse title. Production 73 tells us that Robert Scollay disponed two merks to John Hoseason of Bayan in 1797. But that was 20 years before the division of runrig so, as Mr Williamson asked in his submissions, why should the land corresponding to these two merks still be labelled as Gilbert Scollay’s in 1817? Moreover, there is land on production 71 which is labelled “J H Land” and which is, indisputably, part of Southouse. What makes better sense, therefore, is to regard “G S Land” as corresponding to field 7440, “J H Land” as corresponding to field 7143 and the eastmost part of “H H Land” as corresponding to field 6744. And if one tests this by overlaying production 71 onto the 1902 and 1971 OS maps – suitably adjusted for scale – there is a reasonable correlation to that effect.

[117] In our view, whilst it is abundantly clear that the shape of the fenced eastern boundary of field 7440 as shown on the 1971 map does not lend itself to comparison with the straight line shown on production 71 at the east of the “G S Land”, superimposition of the 1817 sketch plan onto the modern map using the eastern hill dyke as a reference point in terms of east/west proportion does indicate (i) a significant part of the “G S Land” located in field 7740; (ii) most of “J H Land” located in field 7143 and part of field 6955; virtually all of the “H H Land” located in fields 6744 (with part of 6955), 6448 and 6249; and the majority of “H B Land” located in field 5958. It may be added, in relation to (i) above, that when regard is had to the apparent area of arable or improved land on the 1902 map, production 92, in the general locus of what is now the southeastern part of field 7740, the correlation between the 20th century arable areas and the 1817 “Land” is even closer.

[118] Accordingly, in relation to production 71 we prefer the position adopted by the respondents in regard to comparison of the more recent and present day enclosed layouts of the main arable fields of the township with the 1817 division to that of the applicant.

[119] A final feature to note from production 71 is that it shows a narrow strip of “G S Grass” between the “J H Grass” and the “Publick Road to the Hill”. John Hoseason’s grass did not therefore extend to the present access track or ‘strodie’. The proportion of “G S Grass” to “J H Grass” in this area is a small one, amounting, as we have said, only to a narrow strip. We return to the significance of this in the discussion of our conclusion in relation to field 6965.

[120] Before we leave production 71, we would say this. As we understand it, it is a division of the ownership of the land. It says nothing about whether the land was leased. Plainly, at some point, crofts were created within the township. That may or may not have happened before 1817. It had certainly happened by the time of the passing of the 1886 Act, given the fair rent applications which quickly followed. A leasehold regime came into existence at some point. Each landowner would have let out only his own land, of course, and we heard no evidence as to how the crofts came into being but it is not impossible that crofts straddled ownership boundaries. Ownership of the land, a matter on which we have no jurisdiction to adjudicate in any event, is not therefore necessarily determinative of croft boundaries and regard also has to be had to what land came to be properly possessed by individual crofters. The other point to make is that, although production 71 has a stated scale of one half-inch to a Scotch Chain, it is intrinsically just a sketch. As it happens – and as we have noted above – we consider there to be a significant degree of correlation between the sketch and the more recent maps, but beyond that we do not feel able to place reliance on it for precise measurements.

The Fair Rent Application of 1887: Record No 128, Production 86

[121] When lodged this application stated the extent of Southouse as being 4 acres of arable land and 4 acres of outrun and that 1 acre had been reclaimed. The Crofters Commission’s Annual Report for 1892, however, sets out the areas as 4 acres 3 roods 23 poles (4.89 acres) arable and 8 acres 1 rood 24 poles (8.40 acres) of outrun. The 4 acres of arable land are said by the applicant to comprise fields 6955, 6744 and 7143, as shown on production 86, which total 4.31 acres. In isolation this is broadly consistent with the applicant’s claim that fields 6955 and 6744 are parts of Southouse but the matter is not straightforward. It depends on fields 7360 and 6965 (if it is part of Southouse) not being arable. We deal with that matter below.

[122] The Commission’s 1892 report also contains a note that in addition to the 8 acres 1 rood 24 poles of outrun Mr Moar had ¼ of 31 ac. 2 ro. 21 po. and it is also noted that of the outrun of 8 ac. 1 ro. 24 po. 1 ac. 2 ro. is held in common with 7 others. The first note may be a reference to the one-fourth pro indiviso right in the unenclosed grazings at Leogie which is referred to in the 1921 disposition. The second note is suggestive of most of the outrun being exclusive to Southouse and only 1 ac. 2 ro. being held in common. That is consistent with the concept of Southouse having exclusive right to designated parts of the outrun shown on production 83, which we deal with in more detail below, and a shared right in the meadow. Interestingly, a rough estimate of the area of the two parcels of “J H Grass” shown on production 71 comes to 7.2 acres or so and the approximate extent of the west meadow is 1.7 acres (although that is very dependent upon where the coastline is taken to be). The point is that these figures are not wholly at odds with the concept – as in the Crofters Commission’s annual report – of a total of 8.4 acres of outrun, of which 6.9 in is individual occupancy and 1.5 acres is shared.

[123] As to which of the stated acreages we should prefer – those stated in the application itself or those stated in the Annual Report – this is not the first time the Court has been faced with such a discrepancy. Williamson v Foster 1968 SLCR App 123 is an example, albeit in a slightly different context. In that case the Court expressed the view that where there is such a conflict the information stated in the application is to be preferred to that contained in the Annual Reports.

[124] In the present case the areas stated in the Annual Report appear to be precise measurements rather than estimates. They must have come from somewhere. We think they are likely to have been assessed at the time of the Court’s visit to fix the fair rent. It may be that Mr Moar, the tenant of the time, had a mistaken view as to the extent of his entitlement: that it turned out to be more than he had thought. Equally the Court may have misunderstood the extent of his entitlement. On the evidence it is just not possible to be sure what was being assessed, when and by whom. If we had to take a decision on the extent of the Southouse outrun on the basis of the present evidence we would have to apply the guidance given in Williamson and restrict the area of outrun to four acres. However, because of other difficulties to do with the outrun in this case, which we come to below, we have had to leave the extent of outrun as undecided. All we can say is that an approximate estimate of the areas of “J H Grass” and of the meadow area shared by John Hoseason on production 71 is not inconsistent with the extent of outrun noted in the 1892 report.

Maps and plans

[125] Many maps have been lodged in process, annotated to show different things, according to the contentions of the parties. They are mostly based on either the 1902 or 1971 OS maps. The 1902 map, of which production 92 is a clean copy, does not show the individually demarcated fields we see on the 1971 map. But it does show a clear area in the centre of the township which we take to be arable land. Subject to limitations of scale, that area covers all of the fields with which this application is concerned except field 8161. We take it to be arable or at least improved land because of the absence of cartographic symbols of rough grazing seen on surrounding areas which have been recorded as such in 1902. It is known that in 1902 there was, within this clear area in the middle of the township, at least some arable land – the arable strips or areas of “Land” shown on production 71. There is nothing on the 1902 map to distinguish the area corresponding to these strips from the rest of this clear area. We therefore take the whole to have been arable or at least improved land by 1902. The shape of the eastern boundary of this area corresponds reasonably closely to the perimeter of field 7740 on the 1971 map. It is fair to conclude, therefore, that field 7740 has been an arable field since at least 1902. Indeed on the First Edition (1881) OS Sheet XI for Orkney and Shetland, which was surveyed in 1878 and is a publicly available document, the shape is very similar. Where in the 1971 map there is an indent in the eastern boundary of 7740 at the south, the shape on the earlier OS maps lacks that indent and coincides more closely with what is shown on production 71. In passing, it may be noted that on production 83 there are two small allocated areas marked (“A W” and “D B”) at that point suggesting that these areas could have come to be regarded as better land by the time the divisions recalled by Arthur Moar were first effected.

[126] It is also a reasonable conclusion that fields 7360 and 6965 were arable, or at least improved, by 1902. Mrs Thomason accepted in cross-examination by Mr Williamson that the area comprising these fields is shown on production 1. Although initially contending that they were rough grazing, she accepted that they looked cultivated. We return to the applicant’s contentions regarding these fields later but, for the moment, simply looking at the 1902 map, the area represented by these fields looks as though it was arable or at least improved in 1902. There is nothing to distinguish it from areas which are known to have been arable then whereas there is something (the absence of cartographic symbols) which distinguishes it from areas of rough grazing.

[127] Production 68 is a copy of a sketch plan produced for a Land Court case (Record No 4520) in 1939 Its author is thought to be a Mr Johnston, who was a landowner in Cunnister at that time, or Mr Urquhart, his new tenant. The case was an application by Mr Johnston to have Mr Urquhart registered as his tenant in respect of the holding of Park, being the holding which is now owner-occupied by the fourth respondent, Mrs Williamson. The sketch plan shows three arable strips of land. Mr Williamson identified the strip labelled “Arable land of Park” as being what is now his mother’s croft. That is field 6448. Immediately east of it is a strip labelled “Mr Thomas Brown’s Arable”. That is clearly what is now known as Meegie’s. Standing the evidence of the first respondent, it could also have included the Minister’s Merk.

Title deeds

[128] As already stated, copies of title deeds were produced. Before we come to consider them we should emphasise that we have no jurisdiction to decide questions of land ownership (Crowlista Grazings Committee v Uig Crofters Ltd 1970 SLCR App 33). That has to be done in the Sheriff Court or Court of Session. That is something of a relief for us in the context of the present application, given the opacity of some of the deeds which were produced. Our consideration of these deeds is, therefore, solely for the purpose of asking what light, if any, they shed on the extent of the Southouse croft.

(i) The 1921 disposition

[129] Firstly, as we have already noted, what is produced is not an extract or a copy of the deed from the public registers but some sort of office copy retained by the Estate. Thus the signatures of the granters are represented by their typed names. Secondly, we cannot be sure that the tracing which is attached to the copy of the deed which is produced, and a separate copy of which is production 80, is identical to the tracing attached to the recorded deed. Indeed in one respect it is almost certainly not identical. We say that because of the note written on the area of grazing shown to the south of the subjects disponed, which reads “This common grazing not shown on plan attached to the disposition”. On the other hand it is not disputed that the disposition relates to Southouse and, since we are not determining ownership, this document may have evidential value for our purposes which it would not have as proof of ownership.

[130] The disposition was of the croft “as … presently occupied by the said Margaret Moar and Hannah Moar jointly as delineated and coloured red on the tracing annexed … with all buildings and erections thereon and the whole parts pertinents and privileges pertaining thereto”. It purports, therefore, to show what Margaret and Hannah Moar were occupying in 1921. It is known, from the census results referred to in our findings-in-fact, that the Moars occupied the Southouse crofthouse. The croft was said to be part of six and half merks land referred to in a previous deed. That deed is not produced but the six and a half merks in question appear to be these belonging to John Hoseason of Bayan in 1817, the date of division of the runrig.

[131] Although, as Mr Inkster pointed out, the tracing attached to the deed as produced is not said to be taxative, the reader of the deed is expected to look at it to see what it tells about the subjects being conveyed. Doing so, however, turns out to be problematic. If the tracing is superimposed onto a modern map the result is as shown in production 67. It would exclude from Southouse most of fields 6965, 8161, 6744 and 7143 but would include a diagonal swathe through fields 6448 and 6249, to which the applicant lays no claim. Mrs Thomason said that if one were to align it so that the southmost part was aligned with fields 6744 and 7143 the shaded area is broad enough to include both. We have tried that exercise using Mr Williamson’s outline from production 67 and the bottom part is neither wide enough to cover the width of both fields nor long enough to cover their length. The other result of that exercise is that it throws the northmost part out of alignment with fields 6965 and 7360. Mr Williamson’s superimposition was not challenged in evidence. It was not said that production 67 was wrong. No alternative plotting on a modern map was produced. In particular production 46 is not such a plotting. It simply shows what the applicant claims as Southouse. If it is to any extent based on the tracing, that extent was not explored in evidence: whoever prepared the map was not called as a witness. It seems to us that Mr Williamson’s plotting was in fact reasonably accurate and that the position is that no matter how one plots the shaded area on the tracing onto a modern map it cannot be made to cover all that is being claimed as Southouse now.

[132] What is, however, clear is that the shaded area does not include the Southouse buildings. These can be seen on production 92, the clean copy of the 1902 map and on the tracing (which we consider to be based on the 1902 OS map). They are clearly outwith the shaded area. There is a line on the tracing linking the Southouse crofthouse with the shaded area. It does not appear on production 92 and it may be an addition made at the time of tracing to show that the building is linked to the croft. The other houses of the township are also shown on production 71. They were grouped centrally rather than situated on land obviously pertaining to specific crofts. It is perhaps, therefore, not as surprising as it might otherwise be that the shaded area does not include the Southouse buildings Due to the limitations of scale it is difficult to compare the footprint of these buildings as shown on the 1:10,560 1902 map with the 1971 1:2500 map. However, when the two maps are superimposed on each other, the footprint of the buildings is in the same location, even if the shape may be slightly different. In the 1887 application the tenant was stated to be entitled to keep two cows. Hence one of the buildings or part of them could have been a byre. Although the matter was not explored in evidence, it can be noted that what may be a building lying to the southeast of the Southouse house can be seen on the tracing, but is not shown on the 1902 map.

[133] Mr Inkster argued that as the tracing is not described as taxative it is demonstrative only and that the terms of the deed itself must therefore prevail. That accords with our own understanding of these matters. But the disposition merely refers to what was possessed by the Moars. It does not tell us what that was. To such extent as it is necessary, we have to determine that from other evidence in the case. That they occupied and used the buildings is not disputed. It is accepted by parties that, whatever the position with ownership of the land on which these buildings stand may be, these are now to be regarded as part of the Southouse croft.

[134] Despite the tracing not being taxative Mr Inkster was entitled to rely on it for any illustrative or demonstrative value it might have. He prayed in aid two features. One was the “two step feature” to the north-west of the croft. The other was the fact that the eastern, or north-eastern boundary of the shaded area seems to be directly across the road from a walled-in area on the other side of the road, shown in, for example, productions 87 and 92, features of which are said to be shown in one of the photographs in production 81. It is true that both the tracing and production 46 show a “two step feature” and that the north-eastern boundary does seem to sit across the road from the walled-in feature shown on said productions. With regard to the first of these, because of the limitations of the tracing as an evidential tool, on which we comment elsewhere, we are simply not able to identify on the ground where one of the two steps is. One of them appears to be where field 7143 joins the broader field 7360 but we are unable to identify the other. It is possible that it simply represented the edge of arable or improved ground at that locus as indicated on the 1902 map. So far as the second of the matters relied upon by Mr Inkster is concerned, we note that the walled area lies outwith the township, north of the hill dyke and that while broadly opposite extensions of the northwest and southeast boundary lines of the areas coloured red on the sketch they would fall inside that walled area to some extent. In other words the correspondence between the extremities of the walled-in feature and the extensions of the red area on the sketch is not exact: the red area is narrower than the walled-in feature.

(ii) The 1957 and 1959 dispositions

[135] William Brown says that the 1957 disposition is his title to the Haa and that the 1959 disposition is his title to Meegie’s. Mrs Thomason says that these deeds refer to land in the scattald shown, respectively, as belonging to W Nisbet and A C Hoseason on production 5.

[136] To such extent as we require to rely on title deeds, these conflicts have to be resolved in order to see whether there is any connection between what the Browns occupy in the township and the land within the township allocated to Gilbert Scollay and Hosea Hoseason when the runrig was divided in 1817. If the merks referred to in these title deeds are indeed in the scattald then these titles tell us nothing about Mr Brown’s entitlement to land within the township. If, however, they are within the township they bring production 71, showing the division of the runrig, into play and we can look at it to see what it might tell us about present entitlement to land in the township.

[137] What happened when a scattald was divided was described by James Hoseason in the case to which reference has already been made (production 77):

“When the scattald is divided, all the different towns draw a share of the scattald, according to the number of merks in the town. Several towns forming a scattald, proprietors will have a smaller proportion of the scattald than of the town, in proportion to their merks. The grass and meadow land in a town belongs to the merks arable land and the scattald is the same.”

[138] Production 88 tells us that the five merk lands disponed in the 1957 disposition belonged to Gilbert Scollay in 1815. These were “in Cunnister”. They are so described both in the 1786 disposition by Robert Scollay to Gilbert Scollay (production 56) and in the 1852 disposition by Robert Scollay in favour of William Nisbet (production 57). That description, of the merk land being in Cunnister, is significant because the scattald served other townships as well as Cunnister and a description of land, or entitlement to land, as being “in Cunnister” does not seem apt to describe land in the scattald. Also the scattald was not divided until the 1860s. Individual proprietors of land within the townships sharing the scattald would have had entitlements – shares – in the scattald before then but what was being disponed in the deeds to which we refer was not such a share but the ownership of specific areas of land. Thus they refer to “the haill houses, biggings, yards, tofts, crofts, mosses, muirs, tang-ebbs and haill other righteous parts and pertinents thereto belonging”. Also the 1786 disposition contains an obligation to infeft and a Precept of Sasine directing baillies to give “real actual and corporal possession” of the lands by delivery of “earth and stone upon the ground of the said Lands”. Although the ceremony to which that passage refers had long since gone out of use by 1786, the language used is the language of infeftment in a particular area of ground. The disposition itself is contained within a later Instrument of Sasine in favour of the later of the two Robert Scollays which was recorded in the Particular Register of Sasines for the Counties of Orkney and Shetland in 1852. The fact that such recording was possible suggests to us that what was being conveyed was an interest in specific, identifiable land. Given that the division of the scattald into parcels of land identifiable by individual ownership did not happen until the 1860s, it does not seem to us that these earlier deeds are dealing with land in the scattald.

[139] We think, therefore, that the five merks land in Cunnister to which the 1957 disposition refers were to be found within the township of Cunnister in 1817, rather than in the scattald, and that the land to which they relate is that shown as Gilbert Scollay’s land on production 71. In addition to that being in accordance with our understanding of the meaning of the foregoing deeds, it is in accordance with Mr Hoseason’s description, quoted above, whereby the merks in accordance to which a scattald was divided were merks within the townships sharing the scattald. The reference to William Nisbet’s five merks in production 5 seems to us to show the scattald land allocated to him in respect of his five merks of land in Cunnister when the scattald came to be divided in the 1860s. The merks themselves were within the township.

[140] The three and a half merks disponed in the 1959 disposition were, according to production 88, once part of the 14 merks belonging to Hosea Hoseason in 1817. They were disponed to Arthur C. Hoseason and others in 1864 or 1865. At or around the same time the H H Hoseason’s scattald was divided as shown on Mrs Thomason’s explanation of that division, production 89. Production 5 reflects that division, showing A. C. Hoseason having 3 merks and 4 “Tres”. (“Tres” is the word used in that production. The word used in evidence was “ures” and it was said that there were eight ures in a merk.) Again we think that Mrs Thomason is wrong in thinking that A C Hoseason’s merks were in the scattald and not in the township. We consider that what was truly happening was that the scattald was being divided in accordance to the number of merks held by the proprietors of land within the township. We therefore consider that the reference to three and a half merks in production 15 is a reference to entitlement to land within the township rather than to land in the scattald.

[141] That last conclusion is fortified by the following consideration. The 1959 disposition says that the subjects disponed are “all as hitherto occupied and possessed by the said Thomas Brown as tenant thereof”. This reference in the deed to occupancy and possession by Mr Thomas Brown as tenant suggests occupation and possession of inbye land. The use to which the divided scattald portions were put was not explored in evidence but we think it likely, given that the land was scattald, that they were used for grazing. If that is so we doubt whether one would talk of it being “occupied and possessed” in the same way as one would inbye land.

[142] If this general approach – of merks being arable land within the township and scattald shares having been allocated to these merks – is correct, then the five merks held by Gilbert Scollay in 1817 are represented by the field marked “G S Land” on production 71. These merks would now belong to William Brown. As to their location “on the ground” it can only be in the area of field 7740 on the modern map. We say that because the “G S Land” shown on production 71 was the most easterly of the arable strips shown there and the most easterly arable field today is 7740. That corresponds with the evidence that this field has for many years been cultivated by the Brown family as the arable land of the Haa.

[143] Similarly, if the merks disponed in the 1959 disposition are part of Hosea Hoseason’s merks they are part of the area marked “H H Land” on production 71. This is consistent with these merks representing what is now Meegie’s, that is to say field 6744, exclusive of the Minister’s Merk. The land disponed in the 1959 disposition was the land “hitherto occupied and possessed by … Thomas Brown as tenant”. William Brown gave evidence that the land occupied and possessed by his father in that area was Meegie’s and that his father had bought it from the Hoseasons.

[144] We repeat that we cannot decide matters of heritable ownership but these deeds appear to us to corroborate William Brown’s claim that field 7740 is part of the Haa and not Southouse and that Meegie’s is another, distinct, area of land, neither part of the Haa nor part of Southouse, to which he has right.

(iii) Production 83

[145] This is the map annotated by Arthur Moar and Douglas Bowler in or around 1994 when Mr Bowler was in dispute in relation to a matter unconnected to the present application. Mr Moar is believed to have made the majority of the markings on this plan. The fact that he was asked to assist in the preparation of this map and grant the relative affidavit (production 17) is testimony to the regard in which his knowledge of Cunnister was held. In our findings in fact we have drawn attention to the fact that this production has two sets of markings on it: pencilled marks made by Mr Moar and Mr Bowler and a pre-existing set of marks. It is not known who was the author of the pre-existing set of marks and, as between Mr Moar and Mr Bowler, it is not known which of them made which of the pencilled marks on this production but we consider that we are entitled to conclude that Mr Moar at least agreed with the way the map was annotated.

[146] Fields 6744 and 7740 are noted as pertaining to Mrs Brown. No note has been made in field 6965 except to circle some buildings near the southeast of that field and mark them “SH”, for Southouse. This suggests that Mr Moar did not think the rest of the field was Southouse but it is not labelled “AB” for Ann Brown either. Nor has Mr Moar made a note on field 6955. Instead, straddling that field is a brace symbol linking fields 7360 and 7143, both undisputedly parts of Southouse and marked as such on production 83. This might suggest that Mr Moar did not think field 6955 was part of Southouse. That would be consistent with some evidence to the effect that the area represented by this field was an open area, unfenced to the southeast (see production 63), which the owners or tenants of fields 6744 and 7143 could use to access their “rigs”. It would also be part of a potential access to 7740 and the outrun to the east. However, other factors, referred to in our conclusions below, have persuaded us that part of this field does belong to Southouse.

[147] The part of field 8161 with which we are concerned seems originally to have been marked “SH” but a division seems subsequently to have been noted showing part of the park as pertaining to Douglas Bowler and part to Ann Brown. The section marked “DB” extends along the roadside significantly further north than the northwest corner of field 7360 but not as far as the access track to the scattald. The narrow area which is left is the land marked “AB”. The southern boundary of the area marked “DB” is not a straight line but is dog-legged so as to exclude a portion at the east side of the field, which seems to be allocated to Ann Brown in conjunction with her apparent rights in the rest of field 8161. Otherwise the eastern boundary is shown to extend beyond the line of the old road and to take in the enclosed area which lay on the other side of the road (and of the hill dyke) as shown on production 92. This extends Southouse further northeast than is warranted by the title plan and is claimed by the applicant in terms of production 9. It extends it beyond the line of the old road and the old scattald dyke.

[148] This production also shows patchworks of areas evidently allocated among the various proprietors and crofters to the north, south and southeast of the township’s arable land. In the area to the south the initials “SH” appear on one area in or near the meadow and four areas of other grazing. To the north “SH” is marked on two of the areas identified there.

[149] The respondentsdescribed these patchwork areas as “outrun” rather than common grazing. They were insistent on that distinction. Historically the crofts, as almost all crofts did, comprised arable areas and outrun. Sometimes all the land which was exclusive to the croft formed a single geographical unit. In other cases the outrun was situated elsewhere within the township, away from the arable land. Cunnister clearly falls into the second category. As we have seen, in the fair rent application of 1887 Southouse was said to have four acres of outrun although that was more than doubled in the Commission’s 1892 Annual Report. If we are right about the land in the centre of the township all having been arable then the outrun must be found in these patchwork areas. These areas are part of the grass lands allocated to the various merk-holders in 1817 and what seems to have happened is that the 1817 division was followed by a later division of these areas among the tenants (and any owner-occupiers) so as to provide identifiable outrun areas for their crofts. Mrs Thomason gave evidence, based on what she had heard from a Mr Thomas Thomson, that these patchworks had been created by agreement among the tenants (and any owner-occupiers) some time before 1935. Mr Thomson had been born in 1930 and moved to Cunnister in 1935. He had been told of the division by his father who said that the tenants had come together and divided the fields among themselves. The inference was that the division had taken place during Mr Thomson’s father’s lifetime. It seems to us, however, that this division took place even earlier. We say that because of the dispute which followed the death of James Brown in 1899 seems to have involved patches of land in the outrun such as are shown on production 83; see production 77.

[150] We have considered whether the 1887 fair rent application shows the division to have taken place before the passing of the 1886 Act. If so the patchwork would represent not informal rights resulting from an informal division but the extent of the legal rights in the outrun held as pertinents of each croft. However we consider that there is nothing about the 1887 application which shows conclusively whether the division shown on production 83, or something akin to it, was already in existence at that time.

(iv) Stated acreages/hectareages

[151] The applicant sought to derive certain conclusions from the acreages for Southouse arable land stated in the 1887 fair rent application and the current Crofting Commission’s Register of Crofts. We have already touched on these but now consider them in more detail.

[152] As we have seen the acreage stated for Southouse in the 1887/92 Crofters Commission process was 4 acres arable and 4 outrun. In the Annual Report that came to be changed to 4 acres 3 roods and 23 poles for the arable and 8 acres 1 rood 24 poles for the outrun. The Register of Crofts has the respective areas as 1.72 and 3.33 ha, or 4.25 and 8.23 acres. The provenance of these figures is not known.

[153] Concentrating on the arable acreage, and using the figures from the 1971 OS map, the applicant argues that it comprises the aggregate of fields 6955, 6744 and 7143, which total 1.746 hectares or 4.31 acres. That is a third of an acre more than the four acres stated in the fair rent application, but is very close to the figure from the Register of Crofts. The larger area of 4 acres 3 roods and 23 poles from the 1892 Annual Report converts to 4.89 acres. That is about half an acre more than the total of said fields.

[154] The respondents contend that field 7360 is also arable and that it should be taken into account and field 6744 and half of field 6955 left out of account. When one adds the acreages of fields 7143, 7360, and half of 6955, it comes out at 3.8 acres, which would correspond most closely to the 4 acres stated in the fair rent application, less closely with the 4.25 acres from the Register of Crofts and not at all with the 4.89 acres of the 1892 Annual Report. If, in addition to these, part of field 6965 is also Southouse (and also arable) then the acreage is bigger; how much bigger obviously depending upon how much of the field is taken into account. Half would make the total acreage of fields 4173, 7360, half of 6955 and half of the strip of 6965 lying to the northeast of 6448 4.13 acres.

[155] It seems to us that these various permutations show that little reliance can be placed on the fair rent application and Register of Crofts acreages as a means of working out which fields constitute the arable extent, or perhaps more accurately the exclusively occupied in-bye of Southouse. No combination of fields brings out exact correspondence with any of the earlier figures. The applicant argued that fields 7360 and 6965 were not arable at the time of the fair rent application but we have already dealt with that argument to the extent of deciding that at all events they were arable or improved by 1902. We think they were arable or improved in the 1880s and 90s. Accordingly neither the fair rent application nor the Register of Crofts affords reliable evidence for determining the boundaries of Southouse.

[156] The acreages for outrun stated in the fair rent application and the Register of Crofts are even less helpful, given (a) the discrepancies between them and (b) the problems of working out where exactly the Southouse outrun lies among the patchworks shown on production 83.

[157] That concludes our survey of the documentary evidence. We now turn to other elements of the evidence.

Evidence of usage

[158] Standing a submission made by Mr Inkster, we should explain the extent to which evidence of usage is relevant and useful. The submission was that usage does not create rights in crofting. In this context we agree. (It is different in the area of constituting pertinents of crofts, which can be constituted by long usage; Munro v Forbes 1933 SLCR 31). But that does not make usage irrelevant in the present context. It is relevant in this sense and to this extent. The exercise in which we are engaged is to try to determine what the Southouse croft comprised at the passing of the Crofters Holdings (Scotland) Act 1886; Shetland Islands Council v Jamieson & Ors 1988 SLCR 97 at 105. Historic evidence of the nature of land – whether it was arable or grazing – and of its status – whether inbye or common grazing – and of occupancy is clearly relevant to that task and the closer to 1886 one can get the greater the value of the evidence. Thereafter, in certain cases, it might be necessary to see what changes there have been since 1886, whether by statutory processes such as decrofting or resumption or by informal arrangements to the extent to which informal changes have been permitted under the Crofting Acts since then; see, generally, Flavell v McIvor unreported decision of this Court in SLC/127/11 dated 18 July 2012.

[159] William Brown gave evidence that both fields 6965 and 7360 had been arable as far back as he could remember. Arthur Moar was his uncle. He had been tenant of Southouse. He had fenced field 7360 in the 1950s. He had re-seeded it then as well. He had obtained a grant for the purpose. Had he believed that field 6965 was also part of Southouse he would have fenced both fields as one. In cross-examination Mr Brown seemed to suggest that Mr Moar had re-seeded both of these fields. However, he subsequently denied that Mr Moar had used field 6965. Prior to re-seeding, field 7360 had been used for grazing but it could have been arable.

[160] Field 6955 was also arable land. Mr Brown thought that it may have been used for hay.

[161] Field 6744 was also arable. It had originally been rented from the Hoseason Estate by his father and then bought from them in 1959. No one else had owned or tenanted it since then. Within field 6744 is the Minister’s Merk. Mr Brown did not know how it had come to be formed but he could remember a Mr Dougie Johnson growing potatoes and cutting hay on it quite separate from the rest of the field, which was Meegie’s. Our understanding is that what William Brown believes he owns is that part of the field exclusive of the Minister’s Merk. But in any event his evidence was quite clear that no part of field 6744 was part of Southouse.

[162] Field 7740 had always been part of the Haa. It had always been arable. It had been fenced for as long as he could remember. The pattern of fencing had only changed when Mr Bowler had been tenant of the Haa. It had never been used by Arthur Moar.

[163] Mr Brown also gave evidence that the meadow shown on production 83 used to be known as the “cow meadow” and that he could remember cattle being grazed there. He himself had taken cattle there to be grazed. It had been a shared area but he was unclear about the shareholders and shares. He thought only two or three crofters had used it and latterly only Southouse. In addition to being grazed it had been cut for hay and the hay shared. No one had cows now and the land had become unsuitable for grazing.

[164] In relation to the patchwork areas on production 83, he could remember people using their individual patches for the grazing of tethered animals, both cattle and sheep. He had tethered sheep there himself as a youngster. Use of this whole area had, however, come to an end no later than the end of the 1950s.

[165] John Williamson gave evidence that field 6448 was owned by his mother and worked by a partnership in which he was a partner. His mother would have a share in the outrun as indicated by the letters “AW” on production 83. He remembered cows being tethered on the outrun when he was very young but for much the greater part of his life the outrun had not been used.

[166] He was aware that field 6744 was called Meegie’s. As Clerk to the Grazings Committee he was not sure what share, if any, Meegie’s had in the scattald. He thought it could be the share shown for A. C. Hoseason. Meegie’s had always been worked by the Brown family.

[167] His understanding was that field 7740 was arable land. It had been used by the Browns since he was a child. It was neither outrun nor common grazings.

[168] Although his family had grazed animals on their share of the patchwork shown on production 83, he was not aware of his family having any rights in the meadow. He had not previously been aware of its existence as a place for grazing cattle.

[169] Mrs Bowler gave evidence that part of field 6955 was part of the Southouse, that part being the land lying to the east of a line drawn from the top of the fence shown as dividing fields 6744 and 7143 on production 9 diagonally in a northwesterly direction to the point where fields 6448, 6965 and 7360 meet. Mr Williamson gave evidence that field 6955 was an open area, not part of any croft and kept open so as to facilitate access to the fields 6744 and 6955.

[170] There was no evidence as to usage of the part of field 8161 across the road from Southouse but the Browns accept that the part of it which lies opposite field 7360 belongs to Southouse.

The location of the Southouse buildings

[171] The Southouse crofthouse and byreare in field 6965. We see the force of Mr and Mrs Thomason’s submission that it would be logical for these buildings to be situated on Southouse land and that it also makes sense for the access track to be the boundary between Southouse and the subjects on the other side of the track. These factors point towards field 6965 being Southouse land. On the other hand, so far as the location of the buildings is concerned, it has to be remembered that this was a runrig township. If the houses were built before the division of runrig, as seems from production 71 to have been the case, the area on which they were built may have been a communal area used for the township’s houses and other buildings. Even if they were built after 1817 we know from our knowledge as an expert court that croft houses and other buildings are not always built on the crofts to which they pertain; for example they are sometimes built on common grazings.

[172] What this means is that although in this case it is accepted by parties that the Southouse house and byre and an undefined area around the house are to be regarded as forming part of the croft the location of these buildings within field 6965 does not mean that the whole of that field belongs to Southouse.

[173] As to the common sense of the access road being the boundary, that would certainly be a neat arrangement but there is nothing compelling about it and, as explained elsewhere, it has to yield to other evidence that in fact the track is not the boundary.

Conclusions

Field 8161

[174] The tracing attached to the 1921 disposition seems to show Southouse as extending as far as the old public road which ran along the top of the crofts, northeast of the line of the current road. Although the old road tended to follow the line of the hill dyke in the vicinity of the township, it generally lay a little to the southwest of it. At a scale of 1:10,560 it is difficult to be precise, but in the area opposite what is now 7360 and 6965, we think the road probably lay about ten to fifteen metres below the centre of the dyke. The enclosed area on the other side of the old road on the tracing is not shown as being part of the croft. On production 83 the whole of that part of field 8161 which lies to the south of the hill track and which is ex adverso fields 7360 and 6965, including said enclosed area, is divided between Ann Brown and Douglas Bowler, although it seems in an earlier annotation on the plan to have been allocated wholly to Southouse. Arnold and William Brown say that, broadly, the part of this field which is ex adverso field 6965 belongs to the Haa while the part ex adverso field 7360 belongs to Southouse (see productions 8 and 63).

[175] On the basis of the annotations on production 83 and the evidence of William Brown we have decided that this field (i.e. the part of field 8161 which is ex adverso fields 7360 and 6965 and south of the hill track) is part Southouse and part Haa. However we see no warrant for the northeastward extension of these crofts beyond the line of the original hill dyke. The annotations on production 83 are rough. The boundary between what belongs to Southouse and what belongs to Haa is not drawn precisely. But it is clear that a much larger area is allocated to Southouse than to Haa. This is consistent with the relative narrowness of the strip of “G S Grass” in this area on production 71 compared with the width of the neighbouring “J H Grass”.

[176] Because the evidence is insufficient to enable the boundary to be clearly determined we have to bring sec 53A of the 1993 Act into play. It entitles us to declare the boundary to be that which in all the circumstances we consider appropriate. The result of that exercise is shown on the map which accompanies our Order. It excludes the northeastward extension beyond the line of the original hill dyke, for the inclusion of which we found no proper basis in the evidence, and it allocates a larger share to Southouse in rough proportion to what is shown on productions 71 and 83 in respect of the areas within the township dyke. This line of division also ties in with the boundary we have drawn between Southouse and the Haa in field 6965. It is an extension of it.

Field 6965

[177] We have found this field by far the most problematic. Despite the fact that there is a good deal of sense in the applicant’s argument that everything southeast of the access track or strodie is Southouse, we have been driven to the conclusion that in fact it is not. That is for the following reasons; (i) the appearance on production of 71 of a narrow strip of “G S Grass” corresponding to part of this field; (ii) the fact that the map attached to the 1921 disposition clearly excludes the Southouse house and byre; (iii) the note in relation to that field on production 83 which confines the Southouse entitlement to the house, byre and possibly a surrounding area; (iv) the evidence of Mrs Bowler that Mr Moar thought the area on which the tin shed was built was not Southouse land; (v) the lack of evidence of occupation of this land, except for the area of the house and byre, by the Moar family; and (vii) the evidence of Arnold Brown and William Brown that it has historically been possessed by the Brown family.

[178] That is not to say, however, that none of field 6965 is part of Southouse. For one thing it is conceded by Arnold and William Brown that the house and byre sites are to be regarded as part of Southouse. Arnold Brown also thought that a limited but undefined area around the house should also be regarded as belonging to Southouse. The following factors persuade us that the boundary between this field and field 7360 should be further northwest than is shown on production 9; (i) The “G S Grass” strip on production 71 is a very narrow one compared with the area of “J H Grass”; (ii) although the title tracing clearly excludes the Southouse crofthouse it appears to include part of this field given the approximate alignment between the northwest corner of the shaded area and the walled-in feature across the old road from it; and (iii) the fact, already brought out above, that the markings on production 83 seem to allocate a larger area of field 8161 to Southouse than to the Haa and one would tend to expect a correspondence between the areas belonging to each croft on each side of the road, especially since the present road was constructed long after the croft boundaries were established.

[179] We acknowledge that this conclusion involves saying that the fence erected by Mr Moar as the boundary of field 7360 was not the boundary fence of the croft. Despite William Brown’s insistence to the contrary, that is not necessarily improbable. The purpose of the fence could have been to keep animals out of an arable field rather than to define the boundary. Also he may not have wanted the fence any nearer the area of the byre for stock movement reasons.

[180] The evidence was that the Brown family have occupied and used field 6965 for many years, although there was little clear evidence as to the nature of the use to which they put it. On the conclusion we have come to they would certainly have been entitled to occupy part of it. But we are not persuaded that they were entitled to occupy the whole of it. Our doubts about the extent of their use of this field were reinforced by the fact that Mr and Mrs Bowler initially believed that at least part of this field (whereon Mr Bowler built the tin shed) belonged to Southouse and the absence of opposition to its building from William Brown, although we appreciate that he had moved away from Cunnister by the time the shed was built. In general we found William Brown’s evidence in relation to this field less convincing and compelling than his evidence in relation to, for example, fields 6744 and 7740.

[181] Again the evidence is insufficient to enable the true boundary to be clearly determined and we have to rely on sec 53A. The boundary has to be placed where in all the circumstances we consider appropriate.

[182] From that point of view, standing the agreement of parties that the house and byre are on Southouse croft land (a matter as to which we ourselves would have doubts standing the nature of runrig townships and the obvious exclusion of these buildings from the Southouse title plan) we consider that a boundary which integrates these and a reasonable curtilage around them with the rest of Southouse (other than the outrun) is appropriate. The tenants of Southouse would certainly have made use of land around these buildings for the purposes of access, including taking stock to and from the byre, and repairs. To the southwest of the house and garden, however, an area should be left so as to facilitate ease of access to fields 6448, 6955 and 6744.

[183] So far as the tin shed is concerned, we accept the evidence of Mrs Bowler that Arthur Moar believed it to be built on Haa land and the evidence of William Brown and Mrs Bowler that Mr and Mrs Bowler agreed that it would revert to Mr Brown when the Bowlers were finished with it. Accordingly the boundary should recognise the site of the shed together with a reasonable curtilage to the southwest and southeast of it as pertaining to the Haa (or at least not pertaining to Southouse).

[184] Thereafter a boundary continuing in a northeasterly direction where marked on the plan annexed to our Order leaves Mr Thomason adequate room to access the northwest gable of the shed formerly known as the shell shed, which he requires to be able to do with agricultural vehicles. The boundary then extends across the current public road to meet the division we have made within field 8161. So far as the public road itself is concerned, we heard no evidence as to whether land was resumed from crofting when it was formed and have carried out no check on that in our own records. If not then the solum of the road would also form part of Southouse where Southouse straddles the road, which is what the plan annexed to our order shows. If, however, the solum of the road has been resumed our plan should be read subject to that correction.

Field 6955

[185] This field is of relatively recent creation. It does not appear on production 71, where the strips to the south go all the way up to the rectangular blocks of grass to the north. The two were historically separated by a pathway or track, which can be seen on production 92 running along the top of said strips. This would have given the occupants of the various holdings access to all their rigs. Mr Williamson said that the area of this field had at one time been an open area, kept open to allow the owners or tenants of fields 6744 and 7143 access to them. We have not been asked to determine rights of access in this area but whatever rights presently exist will continue to exist. We do not think that it is necessary, in effect, to take this land out of crofting use so as to facilitate access.

[186] We acknowledge that Mr Moar’s marking of this field is ambivalent. It might be thought to exclude this field from Southouse, indeed from any croft. On the other hand, the tracing attached to the Southouse title is clear in showing a continuous area of land, with no break such as shown on production 51, lodged by Mrs Williamson.

[187] The Browns accept that part of this field belongs to Southouse. Arnold Brown thought it divided along the line of the north-south grid line that runs through it. He thought the other part belonged to Meegie’s. Mrs Bowler, who initially thought that no part of it belonged to Southouse (per her map, production 50), later came round to agreeing that part of it did. That part was as we have already described. She thought the rest of it belonged to Meegie’s.

[188] It seems to us that, on balance, we should rely on production 71and hold that the field, so far as its allocation between crofts is concerned, is divided by a northward continuation of the boundary separating fields 6744 and 7143 to the point at which such continuation meets field 7360. That is what we have decided. We are not asked to decide which holding the rest of the field belongs to but it should logically be Meegie’s and, insofar as it may extend that far north, the Minister’s Merk.

Field 6744

[189] For the reasons already given we hold that this field was part of the area marked “H H Land” on production 71. For those reasons, together with the evidence we heard as to historical occupation and use of this land by the Brown family we have come to the conclusion that this field is not part of Southouse.

[190] The applicant argued that there was no trace of a croft called Meegie’s in either the scattald records or the Register of Crofts. So far as the scattald is concerned we think that the A C Hoseason scattald pertains to Meegie’s – although that is not something we have to decide for the purposes of this case. So far as its non-appearance in the Register of Crofts is concerned, the Register of Crofts is an administrative rather than authoritative register. Not all crofts are registered in it and not all the holdings which are registered in it are crofts; Elder v Manson 1964 SLT (Land Ct.) 15, Palmer’s Trs v Crofters Commission 1989 SLCR 98. Its exclusion from the register is not, therefore, conclusive against it being a croft. But all we have to decide is whether it is part of Southouse. For the reasons given we have decided that it is not.

Field 7740

[191] For the following reasons we have come to the conclusion that this field is not the common cow park, nor part of the common cow park, described in the Southouse title: (i) on all of the maps produced in evidence it has always been depicted in the same way as the arable land in the village, rather than as grazing land; (ii) the fact that it broadly corresponds to the area marked “G S Land” on production 71 and represents, in our view, Gilbert Scollay’s five merk lands in Cunnister in 1817 now belonging to William Brown (or possibly William and Charlotte Brown); (iii) the evidence of the historical use of the land as arable land pertaining to the Haa; and (iv) the fact that if this is not part of the arable land of the Haa then the Haa appears to have surprisingly little arable land in Cunnister, what it has apparently being confined to the Haa Yard and part of field 6965.

[192] The 1921 tracing shows an area shaded in yellow to the southeast of Southouse. It certainly appears to include field 7740. On it is written “This common grazing not shown on plan attached to disposition”. Mrs Thomason thought that this note had been made at the same time as the disposition was prepared. We think that unlikely. If it was made then why not just shade in the same area on the copy which accompanied the disposition? Beyond that surmise, we do not know when it was made. But its meaning is clear enough: it means that the shaded area is not shown on the plan attached to the disposition. So productions 3 and 80 are copies of the original tracing with this area added in. Why it was not shown on the original we do not know. It presumably represents someone’s understanding of where the cow park was or is. That is most probably someone in the Estate Office. But because of the uncertainty which surrounds it we are not able to treat this shaded area as reliable evidence of field 7740 being part of the cow park.

The adjoining common cow park

[193] If the common cow park is not field 7440 then where is it? Arnold and William Brown thought the reference to a cow park was a reference to the meadow shown to the south of the arable strips and above the South Ayre of Cunnister on productions 71 and 83. The other possibility is that the whole of the area shaded green on the applicant’s production 46, including said meadow but excluding (a) field 7740 and (b) the wedge of scattald shown on production 28, is the cow park. It could be said that both of these areas – the meadow on its own and the larger area including the meadow – adjoin Southouse.

[194] In our discussion of what we have called the “patchwork” areas on production 83 above we have inclined to the view that these were areas of divided (perhaps informally divided) outrun in 1886. Even if that conclusion is wrong there is no evidence of their use as areas of communal grazing at that time. In particular there is no evidence that it was a common cow park.

[195] That leaves as the other possibility that the common cow park is the cow meadow referred to by William Brown. We know that John Hoseason had right to use part of that area (production 71) and that it is from John Hoseason that the Southouse title derives. William Brown had heard the meadow area being described as a cow meadow. Production 86 refers to 1 acre and 2 roods of the Southhouse outrun being held in common with seven others. There was then obviously thought to be an area of communal grazing somewhere within the outrun. It seems to us that William Brown’s “cow meadow” is likely to be that area. We say that because the name suggests it was used for grazing cows, or possibly forage conservation for cows, and did not belong exclusively to any one croft. It was not, for example, known as “the Southouse cow meadow”. The area spoken of by Mr Brown comprised both areas of meadow shown on production 71. We agree with the applicant that it would be difficult to sustain three cows for any significant part of the grazing season even on that larger area, which measures perhaps 2.5 acres, never mind the smaller area in which John Hoseason had right, especially since the grazing was being shared by perhaps as many as seven other graziers (production 86). However it seems to us that the meadow area is the only area which can be the common cow park referred to in the 1921 disposition. For present purposes we conclude that Southouse has a right to graze three cows in this area as well as the undisputed right to graze four sheep on the area, situated at Leogie, shown in yellow on production 47. We are unable in this application, however, to define the precise boundaries of the cow meadow. Quite apart from there being not enough evidence before us to allow us to do that, other parties, presently unknown to us, appear to have rights in this area and they would have to be called for their interest.

Outrun

[196] That leaves the question of Southouse’s rights in the patchwork areas of outrun shown in production 83. The applicant argued that this was an area in which all of the crofters had grazing rights, in the sense of grazing shares. It was said that the division of it into patches was an informal division carried out by the crofters among themselves, without any legal process. For that reason no evidence was led by the applicant to locate the individual patches belonging to Southouse. William Brown, on the other hand, said that this was an area of individual plots, each identifiable by met stones but no offer was made to show us where these met stones are and on our inspection we did not come across any.

[197] Quite apart, therefore, from the problem of deciding the extent of the Southouse outrun caused by the contradictions contained in the documentary evidence, it is not possible for us to locate it on the ground with any precision. It would be unsafe for us to try to identify the individual patches belonging to Southouse on the basis of production 83. That is firstly because of the lack of evidence as to the legal status of the division it portrays. That may depend upon whether it pre-dated or post-dated the 1886 Act. Secondly, the nature of production 83 – as an indicative, illustrative sketch rather than a precise drawing of boundaries – would make precise plotting of boundaries difficult.

[198] This is, of course, an unsatisfactory result. The patchwork arrangement, whatever its merits were thought to be at the time it came about, is impractical. If used for grazing it would mean either the tethering of animals, as in the past, or the erection of fences, the expense of which would probably be disproportionate to any gain, save, perhaps, for the larger areas. The result is that the land has lain unused, except to the extent that it was used by Mr Bowler, since the 1950s. There is little hope of the land coming back into use while the present arrangement remains in force. The way forward may be an application to the Crofting Commission for a reorganisation scheme under sec 38 of the 1993 Act. For the purposes of this application, lest further and better evidence is found which either shows that our tentative conclusions about the status of the outrun are wrong or would allow us to plot the Southouse entitlement with more precision, we have reserved a right to the applicant to return to the Court if such evidence becomes available. The same applies in regard to the precise boundaries of the cow meadow or cow park.

Postscript

[199] It has been a recurring concern for us in the preparation of this judgement that we may be exceeding our jurisdiction by dealing with matters which are really matters of heritable title. That said, we have had to take views as to the meaning and content (in terms of what they dispone) of the 1921, 1957 and 1959 dispositions and the writs referred to therein. We have tried to restrict our use of these deeds to seeing what light they shed on the question of where the boundaries of the Southouse croft are (a matter which is undoubtedly within our jurisdiction), bearing in mind that croft tenancies are not always co-extensive with the boundaries of heritable properties. If, however, we have in any respect exceeded our jurisdiction we stand to be corrected by a court of competent jurisdiction. It certainly seems to us that sooner or later questions of the ownership of the land within Cunnister are going to have to be addressed and resolved. That may arise almost immediately if the applicant makes application to buy his croft. Quite apart from the problem caused by the fact that his landlords are unknown and might be very difficult to trace, all, or at least some, of the uncertainties which this case has thrown up as to who owns what in this part of Cunnister would have to be resolved. Although such resolution is for another day, we would urge all involved to approach it in a spirit of cooperation thereby minimising further anxiety, antagonism and expense.

Expenses

[200] We have allowed 21 days for motions and supporting submissions on expenses.

For applicant: Inksters, Solicitors, Glasgow

For first respondent: Harper Macleod, Solicitors, Edinburgh